| People v Smith |
| 2013 NY Slip Op 00790 [103 AD3d 430] |
| February 7, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Marvin Smith, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Hilary Hassler of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J. at dismissalmotion; Cassandra M. Mullen, J. at plea and sentencing), rendered March 22, 2011,convicting defendant of criminal sale of a controlled substance in the fourth degree, andsentencing him, as a second felony drug offender whose prior felony conviction was aviolent felony, to a term of 3½ years, unanimously reversed, on the law, theindictment dismissed, and leave granted to the People to apply for an order permittingresubmission of the charges to another grand jury.
On January 4, 2010, defendant was arrested as part of an undercover drug buy andbust operation. Four days later, the People presented to a grand jury evidence of threecharges against defendant: criminal sale of a controlled substance in the third degree,criminal sale of a controlled substance on or near school grounds, and resisting arrest.After the presentation, the grand jury failed to muster a vote for indictment or dismissalfor any of the charges, but took "no affirmative action" on them. After the prosecutorrecalled witnesses for additional testimony, the grand jury voted to indict defendant forresisting arrest, but again took no action on the drug sale charges.
At defendant's arraignment later that month, the prosecutor stated that she intendedto re-present the drug sale charges to another grand jury, but did not seek the court'sauthorization for the re-presentation. In February 2010, the prosecutor submitted the drugsale charges to a second grand jury, along with additional counts for defendants'possession of bags containing cocaine residue and crack pipes. The second grand juryvoted to indict defendant for both drug sale charges and the possession charges, andthereafter the two indictments were consolidated.
In April 2010, defendant moved pursuant to CPL 210.20 for an order dismissing thedrug sale charges on the ground that, after the first grand jury had failed to vote to indicton those charges, the prosecutor violated CPL 190.75 (3) by re-presenting them to thesecond grand jury without authorization. The court denied the motion on the ground thatits permission was unnecessary where, as here, the first grand jury took no action on thedrug charges and the prosecutor did not "withdraw" them before re-presenting.
In January 2011, defendant pleaded guilty to a reduced charge of criminal sale of acontrolled substance in the fourth degree, in full satisfaction of the consolidatedindictment.[*2]
It was error to deny defendant's motion to dismissthe drug sale counts. Under CPL 190.75 (3), the People cannot re-present a charge that agrand jury has dismissed unless the court in its discretion authorizes or directsresubmission. Even without a formal grand jury vote, a charge can be deemed"dismissed" within the meaning of CPL 190.75 (3) if the prosecutor "prematurely takesthe charge from the grand jury" (People v Credle, 17 NY3d 556, 558 [2011]). InCredle, after the People presented drug charges against the defendant to a grandjury, they unsuccessfully tried to muster sufficient votes to indict or dismiss, and thenoffered the grand jury the option of voting "no affirmative action" on the charges(id.). After the grand jury accepted that option, the People, without seeking thecourt's permission, terminated the proceedings and resubmitted the charges to a secondgrand jury, which indicted the defendant (id.). The Court of Appeals dismissedthe drug charges, explaining that when a prosecutor terminates a grand jury'sdeliberations before it has disposed of the matter in one of the five ways permitted byCPL 190.60, the critical question as to whether a dismissal was effected was " 'the extentto which the [g]rand [j]ury considered the evidence and the charge' " (17 NY3d at 560,quoting People v Wilkins, 68 NY2d 269, 274 [1986]). In Credle, theprosecutor terminated the first grand jury proceedings after it had made a completepresentation and directed the jury to deliberate over the charges, and accordingly theproceedings were deemed to amount to a dismissal (17 NY3d at 560).
The People's attempt to distinguish this case from Credle on the ground thathere the prosecutor did not formally "withdraw" the drug charges against defendant fromthe first grand jury, but instead allowed its term to expire, is unpersuasive. Thedistinction has no bearing on whether the charges were effectively dismissed by thegrand jury's failure to indict after a full presentation of the case.
Defendant's guilty plea does not preclude his claim, because the prosecution'snoncompliance with CPL 190.75 (3) was a jurisdictional defect (see People vHansen, 95 NY2d 227, 230-232 [2000] [holding a defendant's "right to beprosecuted on a jurisdictionally valid indictment survive(s) (a) guilty plea"]). Theprosecution's failure to adhere to the statutory procedure "affect[ed] the jurisdiction ofthe court, and as such appellate review thereof was neither waived nor forfeited by thedefendant" (People v Jackson, 212 AD2d 732, 732 [2d Dept 1995], affd87 NY2d 782 [1996] [where the prosecutor, without first obtaining the court'sauthorization pursuant to CPL 210.20 (6) (b), resubmitted charges that were the subjectof a reduction order more than 30 days after the order's entry, the defendant's guilty pleadid not preclude his challenge on appeal]).[FN*]Concur—Andrias, J.P., Friedman, Acosta, Freedman and Richter, JJ.
Footnote *: In People vJackson (212 AD2d 732 [1995]), the People raised an argument similar to theargument that they raise here, namely, that the defendant's guilty plea forfeited his claimthat an unauthorized re-presentation of charges to a second grand jury, because the errorwas non-jurisdictional. In affirming the reversal of the conviction on the merits withoutdiscussing that issue (87 NY2d 782), the Court of Appeals necessarily rejected thePeople's forfeiture argument. Accordingly, in view of Jackson, we decline tofollow our decision in People vMcCoy (91 AD3d 537 [1st Dept 2012]). We note that the appellate briefs forMcCoy did not bring Jackson to the attention of the panel that decidedMcCoy.