| People v Grimes |
| 2014 NY Slip Op 01863 [115 AD3d 1194] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v LouisGrimes, Respondent. |
—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-respondent.
Appeal from an order of the Onondaga County Court (Donald E. Todd, A.J.), datedNovember 29, 2012. The order, insofar as appealed from, granted that part of the motionof defendant seeking to dismiss that count of the indictment charging him with assault inthe first degree.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law, that part of the omnibus motion seeking to dismiss the count of assault in thefirst degree is denied, that count of the indictment is reinstated, and the matter is remittedto Onondaga County Court for further proceedings on the indictment.
Memorandum: The People appeal from an order granting that part of defendant'somnibus motion seeking to dismiss the count of the indictment charging defendant withassault in the first degree (Penal Law § 120.10 [1]). The indictment also contains asecond count, charging defendant with assault in the second degree (§ 120.05 [2]).In dismissing the count charging defendant with assault in the first degree, County Courtheld that the People improperly reopened the grand jury proceedings after a true bill hadbeen voted on the charge of assault in the second degree, which had not been filed as anindictment, in order to supplement the evidence and bring the higher charge of assault inthe first degree. The court concluded that, pursuant to CPL 190.25 (1) and People vCade (74 NY2d 410 [1989]), the People were required to obtain the vote of at least12 members of the grand jury to vacate the grand jury's earlier vote and reopen theproceedings. We agree with the People that the court erred in dismissing the countcharging defendant with assault in the first degree.
Dismissal of an indictment under CPL 210.35 (5) based on a defective grand juryproceeding " 'is limited to instances of prosecutorial misconduct, fraudulent conduct orerrors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury' "(People v Sheltray, 244 AD2d 854, 855 [1997], lv denied 91 NY2d 897[1998]; see People v Huston, 88 NY2d 400, 409 [1996]; People v Shol, 100 AD3d1461, 1462 [2012], lv denied 20 NY3d 1103 [2013]). Pursuant to CPL190.25 (1), "[p]roceedings of a grand jury are not valid unless . . . [16] ofits members are present. The finding [*2]of an indictment. . . and every other affirmative official action or decision requires theconcurrence of at least [12] members thereof."
Here, as noted, the court held that the grand jury proceedings were defective becausethe People, without seeking a formal vote of at least 12 members of the grand jury,submitted additional evidence after the grand jury had voted the first true bill, but beforean indictment had been filed. Contrary to the court's conclusion, Cade does nothold that a grand jury must vote to vacate a prior true bill that has not been filed as anindictment in order to reopen the proceedings and introduce additional evidence insupport of proposed charges that were not previously considered by the grand jury (see generally People v Frasier,105 AD3d 1079, 1080 [2013]; People v Lyons, 40 AD3d 1121, 1122 [2007], lv denied9 NY3d 878 [2007]; People v Dorsey, 166 AD2d 180, 181 [1990], lvdenied 76 NY2d 1020 [1990], lv denied upon reconsideration 77 NY2d 877[1991]). Indeed, in Cade, the Court of Appeals noted that there are reasons, otherthan a prosecutor's belief that the evidence before the grand jury was inadequate or thatdismissal was likely, "why a prosecutor or a [g]rand [j]ury would choose toreopen the evidence. The prosecutor might, for example, supplement the evidence tobring additional or higher charges" (74 NY2d at 417 [emphasis added]). Moreover,unlike the procedure that was in any event approved in Cade, here the prosecutornever requested that the grand jury reconsider the lower charge of assault in the seconddegree in light of the additional evidence (cf. id. at 413-414). Thus, inasmuch asthere was no second presentment of that charge, the grand jury was not required to vacateits prior vote. We therefore conclude that the integrity of the grand jury was not impaired(see Shol, 100 AD3d at 1462). In view of our conclusion, we do not address theissue whether defendant was prejudiced by the procedure employed here.Present—Scudder, P.J., Centra, Fahey, Carni and Valentino, JJ.