OPINION OF THE COURT
Tom, J.
The novel issue now being presented in this Department is whether a second Grand Jury’s vote of "no true bill” to the People’s re-presentment of charges contained in an earlier indictment supersedes and nullifies the original indictment.
Testimony educed at trial reveals that defendant Angela Jones, an admitted crack addict, became involved in a relationship with 62-year-old Edmund Clarke. In December 1989, various residents of the building where Clarke resided observed Clarke continually arguing with defendant, who demanded money.
At approximately 10:00 p.m. on December 29, 1989, Caroline Nicholas, a first floor resident of Clarke’s building, saw defendant and Clarke again arguing about money in front of the premises, at which time defendant repeatedly threatened Clarke with harm if he did not pay her. A number of other residents testified that sometime after midnight, they heard an argument in Clarke’s apartment involving both male and female voices followed by the sound of a gunshot. Ms. Nicholas testified that she looked out through her apartment door peephole and thought she recognized defendant running down the stairs. The next morning, a neighbor of Clarke realized something was amiss and called the police, who arrived and discovered Clarke’s body. Clarke had died of a gunshot wound to the head.
On November 25, 1990, after having been read her Miranda rights, defendant made a videotaped confession to Detectives James Slattery and Michael Moore. Defendant stated that approximately two days before Clarke was killed, she agreed to have sex with him for money with the proviso that he would pay her later. Clarke, however, refused to pay defendant and on the night of December 29, 1989, defendant and [84]*84Clarke again argued about the money and he forced defendant out of the building.
Defendant alleged that she went to her friend Curtis Cooper’s apartment and smoked crack with him and another male she did not know. After some discussion, in which defendant allegedly explained that she did not want Clarke hurt, the men agreed to accompany defendant up to Clarke’s apartment in order to get the money owed her. Defendant stated that when Clarke answered the door, the two men pushed their way into the apartment and she saw, for the first time, that one of the men had a gun. Defendant averred that she became frightened and went downstairs to wait in the street for the money and, after approximately 20 minutes, the men ran from the building.
On December 5, 1990, a Grand Jury voted to indict defendant for felony murder and attempted robbery in the first and second degrees. On October 17, 1991, more than 10 months after the original indictment was filed, the People decided to re-present the case to a new Grand Jury and to add one count of first degree burglary. Rather than presenting just the burglary count, however, the People, inexplicably and improvidently, also presented all of the counts previously acted upon by the first Grand Jury. The second Grand Jury voted "no true bill” with respect to all of the counts. Defense counsel, based on the second Grand Jury’s vote not to indict, moved to dismiss the original indictment.
By decision dated January 10, 1992, the trial court denied defendant’s motion and defendant was tried pursuant to the first indictment. Defendant was thereafter convicted, after a jury trial, of murder in the second degree and sentenced to a prison term of from 15 years to life. Defendant now appeals.
It is well settled that trial courts possess the power to dismiss indictments, but that such power is circumscribed by specific statutory authority, which is not unlimited (Matter of Holtzman v Goldman, 71 NY2d 564, 570; People v Franco, 196 AD2d 357; CPL 210.20).
CPL 210.20 (1) provides, in pertinent part:
"After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that: * * *
"(h) [tjhere exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged”.
The foregoing catch-all provision provides a basis for the [85]*85dismissal of an indictment not delineated in the other paragraphs of CPL 210.20 (1) (People v Goodman, 31 NY2d 262, 269, n).
In the instant case, the second Grand Jury, after having had a full opportunity to consider and evaluate the evidence presented by the People, voted "no true bill” with respect to all of the charges, which created a legal impediment to the conviction of defendant for the offenses charged. This legal impediment is binding upon the People’s case and supersedes the original indictment (CPL 210.20 [1] [h]).
The People urge that the vote of the second, validly constituted Grand Jury, which effectively found that the evidence presented by the People was insufficient to warrant an indictment for felony murder, should be unilaterally and summarily rejected and treated as a nullity in favor of the first Grand Jury.
Article I (§ 6) of the New York State Constitution provides that "No person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury”.
The traditional purpose of a Grand Jury is to prevent prosecutorial excess by ensuring that: "[B]efore an individual may be publicly accused of a crime and put to the onerous task of defending himself from such accusations, the State must convince a Grand Jury composed of the accused’s peers that there exists sufficient evidence and legal reason to believe the accused guilty.” (People v Iannone, 45 NY2d 589, 594, supra; see also, People v Lancaster, 69 NY2d 20, 25; People v Ford, 62 NY2d 275, 282.)
CPL 190.75 (3) provides in relevant part that: "When a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury.”
The purpose of the foregoing statute is to prevent the prosecutorial abuse of resubmitting the same charges, after dismissal, to a new Grand Jury without sufficient and adequate reasons (People v Martin, 71 AD2d 928). The trial [86]*86court’s power to supervise the resubmission is not merely ministerial and the resubmission should be granted only upon a proper showing of a valid ground to warrant resubmission. Such grounds would encompass a showing that new evidence has been discovered; that the Grand Jury failed to give the case a complete and impartial investigation; or that there is a basis for believing that the Grand Jury otherwise acted in an irregular manner (People v Dykes, 86 AD2d 191).
It is clear that a District Attorney may not resubmit a case merely because he or she is dissatisfied with the outcome or is in disagreement, without any legal basis, with the Grand Jury’s vote to dismiss. CPL 190.75 (3) was promulgated to eliminate such situations and curtail those instances where a prosecutor will continue to resubmit chargés until the desired result is achieved (People v Cade, 74 NY2d 410, 414).
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
Tom, J.
The novel issue now being presented in this Department is whether a second Grand Jury’s vote of "no true bill” to the People’s re-presentment of charges contained in an earlier indictment supersedes and nullifies the original indictment.
Testimony educed at trial reveals that defendant Angela Jones, an admitted crack addict, became involved in a relationship with 62-year-old Edmund Clarke. In December 1989, various residents of the building where Clarke resided observed Clarke continually arguing with defendant, who demanded money.
At approximately 10:00 p.m. on December 29, 1989, Caroline Nicholas, a first floor resident of Clarke’s building, saw defendant and Clarke again arguing about money in front of the premises, at which time defendant repeatedly threatened Clarke with harm if he did not pay her. A number of other residents testified that sometime after midnight, they heard an argument in Clarke’s apartment involving both male and female voices followed by the sound of a gunshot. Ms. Nicholas testified that she looked out through her apartment door peephole and thought she recognized defendant running down the stairs. The next morning, a neighbor of Clarke realized something was amiss and called the police, who arrived and discovered Clarke’s body. Clarke had died of a gunshot wound to the head.
On November 25, 1990, after having been read her Miranda rights, defendant made a videotaped confession to Detectives James Slattery and Michael Moore. Defendant stated that approximately two days before Clarke was killed, she agreed to have sex with him for money with the proviso that he would pay her later. Clarke, however, refused to pay defendant and on the night of December 29, 1989, defendant and [84]*84Clarke again argued about the money and he forced defendant out of the building.
Defendant alleged that she went to her friend Curtis Cooper’s apartment and smoked crack with him and another male she did not know. After some discussion, in which defendant allegedly explained that she did not want Clarke hurt, the men agreed to accompany defendant up to Clarke’s apartment in order to get the money owed her. Defendant stated that when Clarke answered the door, the two men pushed their way into the apartment and she saw, for the first time, that one of the men had a gun. Defendant averred that she became frightened and went downstairs to wait in the street for the money and, after approximately 20 minutes, the men ran from the building.
On December 5, 1990, a Grand Jury voted to indict defendant for felony murder and attempted robbery in the first and second degrees. On October 17, 1991, more than 10 months after the original indictment was filed, the People decided to re-present the case to a new Grand Jury and to add one count of first degree burglary. Rather than presenting just the burglary count, however, the People, inexplicably and improvidently, also presented all of the counts previously acted upon by the first Grand Jury. The second Grand Jury voted "no true bill” with respect to all of the counts. Defense counsel, based on the second Grand Jury’s vote not to indict, moved to dismiss the original indictment.
By decision dated January 10, 1992, the trial court denied defendant’s motion and defendant was tried pursuant to the first indictment. Defendant was thereafter convicted, after a jury trial, of murder in the second degree and sentenced to a prison term of from 15 years to life. Defendant now appeals.
It is well settled that trial courts possess the power to dismiss indictments, but that such power is circumscribed by specific statutory authority, which is not unlimited (Matter of Holtzman v Goldman, 71 NY2d 564, 570; People v Franco, 196 AD2d 357; CPL 210.20).
CPL 210.20 (1) provides, in pertinent part:
"After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that: * * *
"(h) [tjhere exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged”.
The foregoing catch-all provision provides a basis for the [85]*85dismissal of an indictment not delineated in the other paragraphs of CPL 210.20 (1) (People v Goodman, 31 NY2d 262, 269, n).
In the instant case, the second Grand Jury, after having had a full opportunity to consider and evaluate the evidence presented by the People, voted "no true bill” with respect to all of the charges, which created a legal impediment to the conviction of defendant for the offenses charged. This legal impediment is binding upon the People’s case and supersedes the original indictment (CPL 210.20 [1] [h]).
The People urge that the vote of the second, validly constituted Grand Jury, which effectively found that the evidence presented by the People was insufficient to warrant an indictment for felony murder, should be unilaterally and summarily rejected and treated as a nullity in favor of the first Grand Jury.
Article I (§ 6) of the New York State Constitution provides that "No person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury”.
The traditional purpose of a Grand Jury is to prevent prosecutorial excess by ensuring that: "[B]efore an individual may be publicly accused of a crime and put to the onerous task of defending himself from such accusations, the State must convince a Grand Jury composed of the accused’s peers that there exists sufficient evidence and legal reason to believe the accused guilty.” (People v Iannone, 45 NY2d 589, 594, supra; see also, People v Lancaster, 69 NY2d 20, 25; People v Ford, 62 NY2d 275, 282.)
CPL 190.75 (3) provides in relevant part that: "When a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury.”
The purpose of the foregoing statute is to prevent the prosecutorial abuse of resubmitting the same charges, after dismissal, to a new Grand Jury without sufficient and adequate reasons (People v Martin, 71 AD2d 928). The trial [86]*86court’s power to supervise the resubmission is not merely ministerial and the resubmission should be granted only upon a proper showing of a valid ground to warrant resubmission. Such grounds would encompass a showing that new evidence has been discovered; that the Grand Jury failed to give the case a complete and impartial investigation; or that there is a basis for believing that the Grand Jury otherwise acted in an irregular manner (People v Dykes, 86 AD2d 191).
It is clear that a District Attorney may not resubmit a case merely because he or she is dissatisfied with the outcome or is in disagreement, without any legal basis, with the Grand Jury’s vote to dismiss. CPL 190.75 (3) was promulgated to eliminate such situations and curtail those instances where a prosecutor will continue to resubmit chargés until the desired result is achieved (People v Cade, 74 NY2d 410, 414).
In the instant case, to permit the District Attorney to proceed upon the first indictment after all the charges had been dismissed by a second Grand Jury is tantamount to allowing the resubmission of charges without any legal basis. This would be in direct contravention of the intent of CPL 190.75 (3) and compromise the authority and integrity of the second Grand Jury. Further, the District Attorney herein does not point to any legal infirmities or any other reasons why the finding of the second Grand Jury should be rejected and dismissed.
In People v Dykes (supra, at 195), it was observed that: "The dismissal of a charge by the Grand Jurors after a full hearing, such as took place in this case, must be taken as establishing as a fact that the evidence was not of sufficient credible worth to warrant a prosecution * * *. Such a finding by the Grand Jury is justly entitled to great weight and prosecutors and Judges are not privileged to substitute their judgment for that of the Grand Jury.”
The second Grand Jury has properly carried out its function and found that the evidence presented by the People was insufficient to indict defendant for the crimes charged and subject her to criminal prosecution.
The finding by the second Grand Jury must be given controlling effect and act as a finality to this proceeding. The trial court, in directing the trial to proceed pursuant to the first indictment, absent any legal basis to dismiss the finding of the second Grand Jury, is, in effect, substituting its own judgment for that of the Grand Jury. This is an impermissible interfer[87]*87ence with the essential function of the Grand Jury which is exclusive with respect to its duties of investigating and evaluating the evidence against defendant as presented by the People. Defendant’s right to have the People’s evidence presented before her peers for determination of sufficiency to prosecute is a vested and protected right designed to balance any prosecutorial excess between the State and the accused. The safeguard of this fundamental right cannot be disregarded.
Further, the People’s contention that CPL 200.80 permits the rejection of the vote of the second Grand Jury is without merit.
CPL 200.80 states, in relevant part: "If at any time before entry of a plea of guilty to an indictment or commencement of a trial thereof another indictment is filed in the same court charging the defendant with an offense charged in the first indictment, the first indictment is, with respect to such offense, superseded by the second and, upon the defendant’s arraignment upon the second indictment, the count of the first indictment charging such offense must be dismissed by the court.” (Emphasis added.)
It must first be noted that the foregoing provision does not apply to the case at bar but rather to those instances where both Grand Juries vote to indict. If CPL 200.80 were to provide any guidance at all, however, it would support the defendant’s position as it clearly indicates that the Legislature intended for the second Grand Jury’s indictment to supersede that of the first. The People’s position simply has no support in the statutory scheme, in the case law, or in general principles of fair play. At the very least, the People should have set forth cognizable grounds for resubmission of the charges, pursuant to CPL 190.75 (3), which was not done.
In sum, we conclude that the second Grand Jury’s vote cannot be treated as a nullity and, in fact, acts as a "legal impediment” to the prosecution of defendant pursuant to CPL 210.20 (1) (h), requiring the dismissal of the indictment.
Accordingly, the judgment of the Supreme Court, New York County (Budd G. Goodman, J.), rendered June 26, 1992, which convicted defendant, after a jury trial, of murder in the second degree and sentenced her to a prison term of from 15 years to life, is reversed, on the law, and the indictment is dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant [88]*88to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30-day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.
The right to an indictment by Grand Jury is dependent solely on the New York State Constitution as the Grand Jury provision contained in the Fifth Amendment to the United States Constitution is not applicable to the States (People v Iannone, 45 NY2d 589, 593, n 3; Peters v Kiff, 407 US 493, 496).