| People v Abdullah |
| 2021 NY Slip Op 05742 [198 AD3d 1101] |
| October 21, 2021 |
| Appellate Division, Third Department |
[*1](October 21, 2021)
| The People of the State of New York,Respondent, |
Pamela B. Bleiwas, Ithaca, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Egan Jr., J.P. Appeals (1) from a judgment of the Supreme Court (Breslin, J.),rendered October 10, 2017 in Albany County, convicting defendant following a nonjurytrial of the crime of burglary in the second degree (two counts), and (2) by permission,from an order of said court, entered December 19, 2018 in Albany County, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
On July 30, 2015, defendant was arrested for unlawfully entering an apartment in theCity of Albany and touching the occupant's genital area over her clothing while she wasasleep in bed. On August 4, 2015, the People presented three charges to a grand jury(hereinafter the first grand jury), alleging that defendant committed the crimes ofburglary in the second degree as a sexually motivated felony, sexual abuse in the firstdegree and robbery in the third degree. The jury returned a "no bill" on the first countcharging defendant with burglary in the second degree as a sexually motivated felony buttook no action with respect to the other two counts. Defendant was released from custodythe following day. On August 6, 2015, defendant was arrested a second time, this timefor allegedly burglarizing the apartment of another individual in the City of Albany. OnAugust 7, 2015, following the People's presentment to the second grand jury, he wasindicted (hereinafter the first indictment) for a single count of burglary in the seconddegree. Defendant moved to dismiss the first indictment and Supreme Court granted themotion, finding that the People had failed, as a matter of law, to provide defendant withsufficient notice of the second grand jury proceeding, but granted the People leave toresubmit the charge.
In September 2015, despite a no bill having been issued by the first grand jury withrespect to the July 2015 incident charging defendant with burglary in the second degreeas a sexually motivated felony, the People filed an ex parte application seekingpermission to resubmit a burglary in the second degree charge with respect to the sameincident to a new grand jury—this time excluding the sexually motivated felonycomponent—contending that the first grand jury had acted in an irregular manner.Supreme Court granted the application and permitted the People to resubmit the chargeto a new grand jury. A third grand jury proceeding ensued and defendant was thereafterindicted (hereinafter the second indictment) for one count of burglary in the seconddegree and one count of sexual abuse in the first degree related to the July 2015 incidentand one count of burglary in the second degree related to the August 2015 incident.Defendant moved to dismiss the second indictment on the ground that the third grandjury proceeding and second indictment were defective, but the motion was denied.
In November 2015, defendant filed an omnibus motion seeking, among other things,dismissal of the second indictment on the ground [*2]thatthe People failed to comply with CPL 190.75 when it resubmitted the charges to the thirdgrand jury. Supreme Court granted the motion with respect to count 2 of the secondindictment charging defendant with sexual abuse in the first degree, finding that thePeople were required to seek court authorization before resubmitting this charge to a newgrand jury, and denied the motion with regard to the two remaining burglary counts.Defendant thereafter pleaded guilty to both counts of burglary in the second degree;however, Supreme Court granted defendant's subsequent motion to withdraw the plea.Defendant then again moved to dismiss the two remaining counts, arguing, among otherthings, that the People failed to comply with CPL 190.75 when it resubmitted the chargesto the third grand jury, but Supreme Court denied the motion, explaining thatresubmission of the July 2015 burglary charge was appropriate because the People's exparte application had presented a different theory of the case.
In October 2016, defendant once again pleaded guilty to two counts of burglary inthe second degree but, in December 2016, Supreme Court again granted defendant'smotion to withdraw his plea. Defendant thereafter waived his right to a jury trial and,following a two-day bench trial, Supreme Court found defendant guilty of two counts ofburglary in the second degree. He was subsequently sentenced, as a second felonyoffender, to two concurrent prison terms of 14 years, to be followed by five years ofpostrelease supervision. Defendant's subsequent motion to vacate the judgment ofconviction pursuant to CPL 440.10 was denied. Defendant appeals the judgment ofconviction and, by permission, the denial of his CPL article 440 motion.[FN1]
Initially, defendant's contention that his due process rights were violated based uponthe ex parte nature of the People's application to resubmit the burglary in the seconddegree charge is unpreserved for our review (see People v Rodriguez, 195 AD3d 1237, 1238 [2021]). Inany event, it is also without merit (see People v Washington, 125 AD2d 967, 969[1986], lv denied 69 NY2d 887 [1987]). Additionally, although Supreme Court'sorder authorizing resubmission did not specify the exact charge that the People wereauthorized to resubmit, the People's ex parte application in this regard only sought toresubmit a single charge of burglary in the second degree with respect to the July 2015incident—in lieu of the previously dismissed charge of burglary in the seconddegree as a sexually motivated felony—and, therefore, it is clear that SupremeCourt granted the People's application solely with respect to that charge (see CPL190.75 [3]).[FN2]
We agree with defendant, however, that Supreme Court should not have granted thePeople's ex parte application for leave to resubmit the charge of burglary in the seconddegree with respect to the July 2015 incident. Pursuant to CPL 190.75 (3), where a grandjury has no billed or dismissed [*3]a charge, said charge"may not again be submitted to a grand jury unless the court in its discretion authorizesor directs the [P]eople to resubmit such charge to the same or another grand jury" (see People v Allen, 32 NY3d611, 613 [2018]; People vCredle, 17 NY3d 556, 557-558 [2011]). A trial court's authority to grantresubmission is not a pro forma or ministerial act and "should be exercised sparingly anddiscriminately" (People v Dykes, 86 AD2d 191, 194-195 [1982]), as the dismissalof a charge by a grand jury is "entitled to great deference because [it] represent[s] adetermination that the evidence was not of sufficient credible worth to warrant aprosecution" (People v Tomaino, 248 AD2d 944, 945-946 [1998] [internalquotation marks and citation omitted]). Thus, the trial court should not authorizeresubmission of a charge unless it appears, for example, "that new evidence has beendiscovered; that the [g]rand [j]ury failed to give the case a complete and impartialinvestigation; or that there is a basis for believing that the [g]rand [j]ury otherwise actedin an irregular manner" (People v Jones, 206 AD2d 82, 85-86 [1994],affd 86 NY2d 493 [1995]; see People v Ballowe, 173 AD3d 1666, 1667 [2019];People v Dykes, 86 AD2d at 195).
Here, there is no dispute that the first grand jury no-billed the charge of burglary inthe second degree as a sexually motivated felony with respect to the July 2015 incident,which is the functional equivalent of a dismissal (see People v Aarons, 2 NY3d 547, 555-556 [2004]).Notwithstanding, the People subsequently sought to resubmit a charge of burglary in thesecond degree based on the same July 2015 incident by simply removing the sexuallymotivated felony component when resubmitting the charge to the third grandjury.[FN3] In theirex parte application, the People's sole basis for seeking resubmission was that the firstgrand jury had acted in an irregular manner. Notably, however, no irregularity is allegedwith regard the first grand jury's vote to no bill the charge of burglary in the seconddegree as a sexually motivated felony. Moreover, in granting the application, SupremeCourt did not find that the first grand jury acted in an irregular manner or that it failed togive the case a complete and impartial investigation or that the People had discoverednew evidence. Rather, Supreme Court granted the People's application because thePeople had presented a new theory of the case. Even assuming, without deciding, thatthis was an appropriate factor for Supreme Court to consider in determining whetherresubmission was appropriate (compare People v Dykes, 86 AD2d at 197), areview of the underlying charges demonstrates that the resubmitted burglary in thesecond degree charge that was presented to the third grand jury did not actually present anew theory of the case and, instead, relied upon the very same facts and conduct thatwere presented to the first grand jury, which it previously found were insufficient [*4]to warrant prosecution. As such, we find that SupremeCourt should not have granted the People a second bite at the apple by authorizing themto resubmit a previously no-billed burglary in the second degree charge to the third grandjury (see People v Jones, 206 AD2d at 86-87; People v Dykes, 86 AD2dat 197). It follows that count 1 of the second indictment, charging defendant withburglary in the second degree with respect to the July 2015 incident, must bedismissed.
Defendant is not entitled to dismissal of the entire second indictment based upon thepotential prejudice that resulted when the People improperly resubmitted the charge ofsexual abuse in the first degree to the third grand jury in contravention of CPL 190.75(3). Initially, we note that the first grand jury took no action with respect to the sexualabuse in the first degree charge that was submitted, and its failure to act did notnecessarily constitute a dismissal of the charge so as to render the requirements of CPL190.75 (3) applicable to the resubmission of said charge (see People v Aarons, 2NY3d at 551). Further, even assuming that it was error for the People to resubmit thiscount without prior authorization from Supreme Court, given the isolated nature of theerror, the nature of the admissible proof and strength of the evidence supporting thesecond indictment, we cannot say that the resubmission of this count had the potential toprejudice the grand jury's ultimate decision (see People v Farley, 107 AD3d 1295, 1296 [2013], lvdenied 21 NY3d 1073 [2013]).
Finally, our dismissal of count 1 of the second indictment, charging defendant withburglary in the second degree with respect to the July 2015 incident, does not require areversal of defendant's conviction on count 3 charging him with burglary in the seconddegree with respect to the August 2015 incident. In determining whether an error in theproceedings relating to count 1 requires reversal of the conviction of count 3 that wastried jointly therewith, the trial court must evaluate "the individual facts of the case, thenature of the error and its potential for prejudicial impact on the over-all outcome" and,"if there is a reasonable possibility that the jury's decision to convict on the tainted countsinfluenced its guilty verdict on the remaining counts in a meaningful way," reversal isrequired (People v Allen, 32 NY3d at 620 [internal quotation marks and citationsomitted]). Under the circumstances of this case, and having weighed the relevant factors,we conclude that prosecuting count 1 at the subject nonjury trial did not have thepotential to influence, in any meaningful way, Supreme Court's decision to convictdefendant on count 3, a second, wholly unrelated burglary count (see People vAllen, 32 NY3d at 620-621; compare People v Morales, 20 NY3d 240, 250 [2012]). Inview of the foregoing, defendant's remaining contentions have been renderedacademic.
Lynch, Clark, Pritzker and Colangelo, JJ., [*5]concur. Ordered that the judgment is modified, on the law,by reversing defendant's conviction of burglary in the second degree under count 1 of thesecond indictment; said count dismissed and the sentence imposed thereon vacated; and,as so modified, affirmed. Ordered that the order is affirmed.
Footnote 1:Defendant did not raiseany arguments in his brief with respect to the appeal from the denial of his CPL 440.10motion and, therefore, we deem said appeal to be abandoned (see People v Ellis, 182 AD3d791, 792 n 2 [2020], lv denied 35 NY3d 1026 [2020]).
Footnote 2:This Court granteddefendant's motion for release of the People's confidential ex parte application seekingleave to resubmit the charge to the third grand jury and further provided the parties withthe opportunity to file supplemental briefs (see 2021 NY Slip Op 61439[U][2021]). The People did not file a supplemental brief.
Footnote 3:The sexually motivatedfelony component subjects a convicted defendant to certain sentencing enhancements,including that he or she must be sentenced as a sex offender (see Penal Law§§ 60.13, 70.80, 130.91, 140.25).