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Grand Jury Practice: When Is A Withdrawal A Dismissal And When Must The DA Seek Court’s Permission To Re-present To The Grand Jury


People v. Davis 2011 Slip Op 07474

Decided October 25, 2011 New York Court of Appeals 

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Issue: whether the People’s withdrawal of their case from the first grand jury presentation due to witness unavailability constituted the functional equivalent of a dismissal pursuant to CPL 190.75.

Holding: The Court of Appeals concluded that it did not because no charges were brought against Davis in the first Grand Jury.

Facts: Assault charges were filed  stemming from an altercation at a nightclub  instigated by Davis and joined in by McIntosh.  McIntosh was arrested shortly after the incident; Davis was not apprehended until some time later.

Before police located and arrested Davis, the People began presenting evidence to a grand jury. Before calling the complainant, the People advised the jury that they were presenting evidence against McIntosh only and that “[t]his will be a continued case,” meaning that not all evidence would be submitted in one session.

Walker then testified that Davis, an acquaintance of hers, assaulted her. She further testified that McIntosh, also an acquaintance, joined in the assault. Ten days later, on June 30, 2006, the People advised the grand jury that they were withdrawing the case due to witness unavailability and the fact that it was this grand jury’s last day.

Four months later, the People presented evidence to another grand jury, this time naming both Davis and McIntosh as targets, and asking it to consider the same charges against both defendants.

Supreme Court denied defendants’ motion to dismiss the indictment on the ground that the People should have obtained court authorization pursuant to CPL 190.75 (3) before re-presenting the case to a second grand jury.  Davis and McIntosh brought separate appeals, claiming that the People should have obtained court authorization pursuant to CPL 190.75 (3) before re-presenting their cases to a second grand jury.

Legal Analysis: As relevant to these cases, CPL 190.60 (4) provides that once a grand jury hears and examines the evidence, it may among other options, dismiss the charge before it, as provided in section 190.75.

A grand jury must dismiss a charge lodged against a designated person where the evidence before it is legally insufficient to demonstrate that such person committed the crime charged or any other offense, or where it is not satisfied that there is reasonable cause to believe such person committed such crime or any other offense.  In such a case, the dismissed charges may be re-presented to another grand jury but only after the People obtain court authorization (see CPL 190.75 [3]). This rule was enacted to “curb abuses that resulted from the common-law rule that allowed prosecutors to resubmit charges to successive Grand Juries ad infinitum until one voted an indictment”

In Wilkins, we held that the People’s pre-vote withdrawal of charges from the grand jury, after the presentation was complete but before the grand jury was charged on the law, was the functional equivalent of a dismissal for purposes of CPL 190.75 (3), requiring the People to obtain court authorization before re-submission. There we held that the essential issue in deciding whether the People’s withdrawal from the grand jury should be treated as a de facto dismissal was “the extent to which the Grand Jury considered the evidence and the charge” (68 NY2d at 274).

The People’s first presentation in Wilkins “was, as far as the prosecution was concerned, complete,” and we concluded that because all of the witnesses had testified and the only thing left for the People to do was charge the jury on the law, the People’s “unilateral withdrawal so late in the game must be deemed a dismissal, regardless of the good faith of the withdrawal.”

Wilkins applies in only “limited circumstances” where the People’s withdrawal of a case from the grand jury “is fundamentally inconsistent with the objectives underlying CPL 190.75″

In Davis, the order of the Appellate Division should be reversed, because the People had instructed the first grand jury that only McIntosh was the target of the proceedings. Moreover, the People advised the grand jury that it was to consider the evidence only against McIntosh. Since the People never sought an indictment from the first grand jury against Davis, Wilkins is irrelevant since there were no charges against Davis to be withdrawn