| People v Miller |
| 2013 NY Slip Op 03928 [106 AD3d 670] |
| May 30, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Derrick Miller, Appellant. |
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Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), renderedOctober 19, 2010, convicting defendant, after a jury trial, of four counts of grand larcenyin the fourth degree and three counts of jostling, and sentencing him, as a second felonyoffender, to an aggregate term of 2 to 4 years, unanimously reversed, on the law, and theindictment dismissed, with leave to the People to apply for an order permittingresubmission of the charges to another grand jury.
The People sought an indictment for grand larceny in the fourth degree (four counts)and jostling (five counts), following which they filed a certificate of affirmative grandjury action with respect to the three counts of jostling and informed the court that thegrand jury had taken no action on the grand larceny counts. Without obtaining leave ofcourt, the prosecutor presented the case to a second grand jury, which returned anindictment on the four grand larceny counts, together with a superseding indictment onthe three jostling counts. Defendant then moved to dismiss the indictment on the groundthat it had been obtained by utilizing "improper procedure."
The failure to obtain court authorization to re-present the charges to a second grandjury implicates the power to prosecute (People v Smith, 103 AD3d 430 [1st Dept 2013]; Peoplev Jackson, 212 AD2d 732 [2d Dept 1995], affd 87 NY2d 782 [1996]); thus,defendant was not required to alert the court to the authorization requirement of CPL190.75 (3), or otherwise object, in order to preserve the issue for appellate review.Where, as here, the prosecutor presented charges and the grand jury failed to vote toeither dismiss them or indict the defendant, a situation arose "in which the court, and notthe prosecutor, should have decided whether re-[*2]presentation to a second grand jury was appropriate" (People v Credle, 17 NY3d556, 561-562 [2011]; People v Wilkins, 68 NY2d 269, 273-274 [1986]). Inthe absence of court authorization, dismissal of the indictment is required (17 NY3d at562). Concur—Tom, J.P., Sweeny, Moskowitz, Renwick and Clark, JJ.