| People v McIntosh |
| 2010 NY Slip Op 04506 [73 AD3d 653] |
| May 27, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Fayola McIntosh, Appellant. |
—[*1]
Judgment, Supreme Court, New York County (Michael J. Obus, J., at dismissal motion;Laura A. Ward, J., at jury trial and sentence), rendered October 16, 2008, convicting defendantof assault in the second degree and sentencing her, as a second felony offender, to a term of fiveyears, unanimously reversed, on the law, and the indictment dismissed, with leave to the Peopleto apply for an order permitting resubmission of the charges to another grand jury.
We determined on the codefendant's appeal (People v Davis, 72 AD3d 53 [2010]), the indictment wasunauthorized because the prosecutor did not obtain permission to present the case to a secondgrand jury. The People have not shown any basis for reaching a different result here. As wenoted in Davis (72 AD3d at 62), the victim's testimony at the first grand jurypresentation that the codefendant "swiped an object in front of her face, hit her while holding theobject in her hand, and 'cut' her hair causing her to bleed, as well as the display of her 'cuts' to thejury," was legally sufficient to establish that the victim was assaulted with a dangerousinstrument. The further testimony that defendant joined in the attack by "striking" and "hitting"the victim in the head and back was sufficient to establish defendant's liability as an accomplice.The fact that the testimony did not specifically place a weapon in defendant's hands is of noconsequence.
We reject defendant's argument that the People should be precluded from presenting the caseto a third grand jury. The rule against third presentations (see CPL 190.75 [3]) does notapply where there has been a dismissal by a court (People v Morris, 93 NY2d 908[1999]; see also People v Wilkins, 68 NY2d 269, 277 [1986]).
In view of this disposition, we find it unnecessary to address defendant's remaining [*2]claims, except that we find the verdict was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). Concur—Mazzarelli, J.P., Sweeny,Freedman, Richter and Manzanet-Daniels, JJ.