People v. Nunez

157 Misc. 2d 793, 598 N.Y.S.2d 917, 1993 N.Y. Misc. LEXIS 195
CourtNew York Supreme Court
DecidedApril 28, 1993
StatusPublished
Cited by3 cases

This text of 157 Misc. 2d 793 (People v. Nunez) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Nunez, 157 Misc. 2d 793, 598 N.Y.S.2d 917, 1993 N.Y. Misc. LEXIS 195 (N.Y. Super. Ct. 1993).

Opinion

OPINION OF THE COURT

Steven W. Fisher, J.

The issue presented on this motion involves the operation and effect of the so-called "inspect and reduce” statutes enacted in 1990 (CPL 210.20 [1-a], [6]).

Under prior law, a defendant’s only available challenge to the sufficiency of Grand Jury evidence lay in a motion to inspect and dismiss. The court was powerless to act, however, unless an inspection of the Grand Jury minutes revealed that the evidence before the Grand Jury was legally insufficient to establish not only the offense charged but any lesser included offense as well (CPL 210.20 [1] [b]; see, e.g., People v Adorno, 112 AD2d 308, 309 [2d Dept]; cf., People v Reyes, 148 AD2d 756, 758 [2d Dept], affd 75 NY2d 590). As a consequence, indictments charging more serious crimes than warranted by the Grand Jury evidence were unassailable, and plea bargaining restrictions, wholly inappropriate to the realities of the case, blocked fair dispositions and needlessly extended proceedings.

In 1990, the Legislature attempted to address this problem by amending CPL 210.20 (see, L 1990, ch 209, § 14). Insofar as relevant here, CPL 210.20 (1-a) now empowers a court to issue an order reducing a count of an indictment where the evidence before the Grand Jury is legally sufficient to establish the defendant’s commission of a lesser included offense of the crime charged but not the crime itself. CPL 210.20 (6) sets forth the procedure to be followed when such an order is issued. In pertinent part, that statute provides:

"The effectiveness of an order reducing a count or counts of an indictment * * * shall be stayed for thirty days following the entry of such order * * * On or before the conclusion of such thirty-day period, the people shall exercise one of the following options:

"(a) Accept the court’s order by filing a reduced indictment
* * *
"(b) Resubmit the subject count or counts to the same or a different grand jury within thirty days of the entry of the order or such additional time as the court may permit upon a showing of good cause * * *
[795]*795"(c) Appeal the order.”

The issue in the case at bar arises out of the People’s failure to exercise any of those options within 30 days of the entry of a reduction order. The facts are essentially undisputed.

By Queens County indictment No. 3082/92, the defendant was charged in four counts with grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, criminal mischief in the third degree, and unauthorized use of a vehicle in the third degree. It was alleged that he had stolen, possessed and operated a motor vehicle valued in excess of $100, and that he had caused damage to it in an amount exceeding $250.

Upon the defendant’s omnibus motion, this court issued an order which, inter alla, granted the defendant’s motion to inspect the Grand Jury minutes and, upon such inspection, reduced the first two counts of the indictment to petit larceny and criminal possession of stolen property in the fifth degree "on the ground that the evidence submitted to the Grand Jury [was] legally insufficient to establish the value of the vehicle in question.” In its final sentence, the order provided: "The effectiveness of this order shall be stayed for a period of 30 days to permit the People to exercise their choice of options pursuant to CPL 210.20 (6).”

The order was entered on November 4, 1992, and the case was adjourned to December 4, 1992. On that date, the People simply asked for an adjournment, representing that they had not yet resubmitted the case to a new Grand Jury but intended to do so. The same representations were made on December 16, 1992 and on December 21,1992.

When the case was called on January 4, 1993, the People announced that a new indictment had been returned and, on January 7, 1993, the defendant was arraigned on Queens County indictment No. 5125/92. The new indictment charged the defendant in six counts with grand larceny in the third and fourth degrees, criminal possession of stolen property in the third and fourth degrees, criminal mischief in the fourth degree, and unauthorized use of a vehicle in the third degree. Indictment No. 3082/92 was dismissed as superseded.

The defendant now seeks dismissal of the new indictment on the ground that it was not returned within 30 days of the entry of the reduction order.

In resisting the motion, the People offer four arguments. First, they contend that by failing to object to the adjourn-[796]*796merits granted to the People the defendant waived his right to complain that the new indictment is untimely. Second, the People maintain that there was good cause for their failure to return an indictment within 30 days. Third, the People insist that, regardless of any time limitation contained in CPL 210.20 (6), a prosecutor retains the unrestricted right under CPL 200.80 to seek a superseding indictment at any time prior to the entry of a guilty plea or the commencement of trial. And fourth, the People maintain that the defendant’s motion must be denied in any event because the court lacks the necessary statutory authority to dismiss the new indictment. I deal with these contentions seriatim.

The People’s waiver argument rests on the assertion that the "[defendant failed to object to this Court’s granting the People’s requested adjournments, and failed to demand that this Court’s order reducing certain counts in the original indictment be declared effective once the stay period had expired.” This contention is entirely without merit.

By its own terms, the order provided that its effectiveness would be stayed only for a period of 30 days. Neither the statute which authorized the reduction order nor the order itself contains any requirement that a "demand” be made for the lifting of the stay once the 30-day period expires. Moreover, on December 16, 1992, when the prosecutor announced for a second time that the People intended to resubmit the case to a new Grand Jury but had not yet done so, defense counsel indicated that, because of the expiration of the 30-day period, he would seek dismissal of any new indictment and would ask to have the old indictment deemed reduced.

Thus, the defendant has not waived his right to complain of the People’s failure to comply with the 30-day limitation. Indeed, if there has been a waiver here it lies in the fact that the People never explicitly asked for an extension of the stay.

The People next contend that there was good cause for the delay in the re-presentment of the case. Citing a handwritten note of an Assistant District Attorney, made at the Grand Jury on December 15, 1992, the People assert that resubmission was delayed because the complainant was "afraid to come forward” as a result of a "visit that was made to his home by people unknown to him who had told him not to 'do anything against the defendant’.” Nothing further is offered to substantiate the claim or to explain what action the prosecutor took as a result or how the complainant was ultimately persuaded [797]*797to testify. More important, the prosecutor never revealed to the court the existence of the problem at any time prior to the submission of the People’s answer to the instant motion.

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Related

People v. Green
170 Misc. 2d 301 (New York County Courts, 1996)
People v. Jackson
665 N.E.2d 172 (New York Court of Appeals, 1996)
People v. Rios
203 A.D.2d 491 (Appellate Division of the Supreme Court of New York, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
157 Misc. 2d 793, 598 N.Y.S.2d 917, 1993 N.Y. Misc. LEXIS 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nunez-nysupct-1993.