| People v Dinkins |
| 2013 NY Slip Op 01359 [104 AD3d 413] |
| March 5, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Donell Dinkins, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Hilary Hassler of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered July 6,2010, convicting defendant, upon his plea of guilty, of grand larceny in the fourthdegree, and sentencing him, as a second felony offender, to a term of 2 to 4 years,unanimously reversed, on the law, the plea vacated, the indictment dismissed, and leavegranted to the People to apply for an order permitting resubmission of charges to anothergrand jury.
On March 12, 2010, police officers arrested defendant as part of a team that on thatday stole several wallets and other items from restaurant patrons. Later that month, thePeople presented to a grand jury evidence against defendant of four counts offourth-degree grand larceny, and five counts of jostling. After a four-day presentation,the grand jury indicted defendant for the jostling counts but failed to muster a vote eitherto indict defendant for the grand larceny counts or to dismiss those counts.
In April 2010, defendant applied for a bail reduction because the grand jury had onlyindicted him on the misdemeanor jostling counts. At a hearing later that month, theprosecutor opposed a reduction because the grand jury had not dismissed the felonycounts but had instead taken "no affirmative action" with respect to them, and stated thathe planned to re-present the grand larceny charges to another grand jury. The prosecutordid not seek the court's authorization for this re-presentation. The court then reduceddefendant's bail.
Three days later, the prosecutor presented the case to a second grand jury and askedit to indict defendant on the four grand larceny counts and also on three of the fivejostling counts that the first grand jury had considered. After the re-presentation, thesecond grand jury returned a superseding indictment on all seven counts.
In June 2010, defendant pleaded guilty to one count of fourth-degree larceny, in fullsatisfaction of the charges in the outstanding indictment. He also pleaded guilty to twoother pending charges.
On appeal, defendant contends that the People violated CPL 190.75 (3) byre-presenting the felony grand larceny counts in the indictment to a second grand jurywithout the court's permission. Accordingly, defendant argues, he is entitled to thevacatur of his guilty plea and the dismissal of the second indictment.[*2]
Under CPL 190.75 (3), the People may notre-present a charge that a grand jury has dismissed unless the court in its discretionauthorizes or directs resubmission. Even without a formal grand jury vote, a charge canbe deemed "dismissed" within the meaning of CPL 190.75 (3) when the prosecutor"prematurely takes the charge from the grand jury" (People v Credle, 17 NY3d 556, 558 [2011]; People v Smith, 103 AD3d430 [1st Dept 2013]). In Credle, after the prosecution presented drug felonycharges against the defendant to a grand jury, it unsuccessfully tried to muster sufficientvotes to indict or dismiss, and then offered the grand jury the option of voting "noaffirmative action" on the charges (17 NY3d at 558). After the grand jury accepted thatoption, the People, without seeking the court's permission, terminated the proceedingsand resubmitted the charges to a second grand jury, which indicted the defendant(id.). The Court of Appeals dismissed the drug charges, explaining that when aprosecutor terminates a grand jury's deliberations before it has disposed of the matter inone of the five ways permitted by CPL 190.60,[FN*] the critical question as to whether a dismissal was effected was " 'the extent to which the[g]rand [j]ury considered the evidence and the charge' " (17 NY3d at 560, quotingPeople v Wilkins, 68 NY2d 269, 274 [1986]). In Credle, the prosecutorterminated the first grand jury proceedings after it had made a complete presentation anddirected the jury to deliberate over the charges; accordingly the withdrawal was deemed adismissal (17 NY3d at 560).
As this Court recently found in Smith under virtually identical circumstances,the People's attempt to distinguish this case from Credle on the ground that herethe prosecutor did not formally "withdraw" the charges against defendant from the firstgrand jury, but instead allowed its term to expire, is unavailing (Smith, 103AD3d at 431-432). The critical question is whether the grand jury failed to indict after afull presentation of the case.
Defendant's guilty plea does not preclude his claim, and his failure to preserve it doesnot preclude our review, because the prosecution's noncompliance with CPL 190.75 (3)is a jurisdictional defect (see People v Hansen, 95 NY2d 227, 230-232 [2000][holding a defendant's "right to be prosecuted on a jurisdictionally valid indictmentsurvive[s] [a] guilty plea"]). The prosecution's failure to adhere to the statutory procedure"affect[ed] the jurisdiction of the court, and as such appellate review thereof was neitherwaived nor forfeited by the defendant" (People v Jackson, 212 AD2d 732, 732[2d Dept 1995], affd 87 NY2d 782 [1996] [where the prosecutor, without firstobtaining the court's authorization pursuant to CPL 210.20 (6) (b), re-submitted [*3]charges that were the subject of a reduction order more than30 days after the order's entry, the defendant's guilty plea did not preclude his challengeon appeal]; see also Smith, 103 AD3d at 432). Concur—Tom, J.P.,Andrias, Acosta, Saxe and Freedman, JJ.
Footnote *: Under the statute, thegrand jury's options with respect to a charge are limited to indicting (see CPL190.65), dismissing (see CPL 190.75), directing the district attorney to file eithera prosecutor's information with a criminal court (see CPL 190.70) or a request forremoval to the family court (see CPL 190.71), or submitting a grand jury report(see CPL 190.85).