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Defendant is brought before Gand Jury twice


In this criminal case, a motion to dismiss was filed pursuant to CPL 30.30(1)(a) which requires the court to determine how the Second Department’s decision in a case law affects the calculating of the prosecutor’s speedy trial time. In October 1988, the court dismissed an indictment charging defendant with robbery in the first degree, robbery in the second degree, criminal possession of stolen property in the fifth degree, grand larceny in the fourth degree and criminal possession of a weapon in the fourth degree. The court took this action after finding that the prosecutor had obtained the indictment in a manner that violated CPL 190.75(3).

A Kings County Grand larceny Lawyer said that the prosecutor initially presented evidence establishing that defendant committed a knifepoint robbery. After hearing appropriate legal instructions, the grand jury indicted defendant on one count of robbery in the first degree. Then, before the foreperson filed the indictment, the prosecutor returned to the grand jury, directed it to reopen its deliberations, presented more evidence, and delivered new instructions on robbery in the first degree and several additional crimes. Finding that the prosecutor had no authority to reopen defendant’s case, the court concluded that the grand jury’s decision to consider additional evidence constituted a dismissal of its original vote. The court therefore held that the indictment was void because the prosecutor failed to seek judicial authorization for resubmission.

After dismissing defendant’s indictment, the court granted the People permission to re-present the case to another grand jury. The prosecutor obtained a new indictment identical to the one the court dismissed and filed it approximately 10 months after the criminal action commenced. Defendant moves to dismiss this second indictment claiming that he has been denied a speedy trial. Defendant contends that the prosecutor’s violation of the principles stated in a case, rendered his initial indictment jurisdictionally defective. Consequently, defendant maintains that all the proceedings conducted pursuant to this indictment were void and all delay associated with these proceedings must be charged against the prosecution. The People contend, on the other hand, that much of this delay is excludable.

The issue to be resolved in this case is whether there was delay occurred in defendant’s first indictment.

The Court held that to determine the excludability of delay occurring under defendant’s first indictment, the court must decide how a defect in defendant’s accusatory instrument affects the court’s analysis pursuant to CPL 30.30(4). Although defendant characterizes his original indictment as “jurisdictionally defective,” this phrase merely begins the court’s inquiry. The Second Department in a case law addressed the application of CPL 30.30 to defective indictments and stated that when an indictment is dismissed as jurisdictionally defective, the delay between the filing of the complaint and the filing of the second indictment is not automatically attributed to the People. The Second Department did not discuss its reasoning, however, but instead relied on a string of several citations. Because these cases have inconsistent implications for the application of CPL 30.30 to a case involving a Cade dismissal, the court finds it appropriate to discuss the law in this area in some detail.

In holding that courts may exclude delay occurring pursuant to jurisdictionally defective indictments, the court relied on two lines of cases that derive from conflicting principles. The first series of cases establishes that, for the purpose of computing speedy trial time, a criminal action begins with the filing of the first accusatory instrument and continues through the final disposition of the charges.. Under this theory, CPL 30.30(4) exclusions apply to all accusatory instruments filed in the criminal action, even those that are dismissed.

Under a second group of cases the courts have held that a defendant may waive the inclusion of delay occurring before the prosecutor files an accusatory instrument sufficient to confer trial jurisdiction on the court. These cases have their roots in cases where the court held that the exclusion contained in CPL 30.30(4)(c) does not apply until the People obtain a jurisdictionally complete accusatory instrument. Taken together, these two lines of authority support the application of CPL 30.30(4) to most cases in which delay occurs before an accusatory instrument is replaced. They do not resolve the question presented by Cade, however, where the prosecutor’s misconduct in the grand jury produces a hidden defect in the indictment.

In the instant case, defendant could not have known that his indictment was a nullity when he acquiesced in several adjournments. The cases recognizing defendant’s ability to waive his speedy trial rights therefore simply do not apply. In another case, , each defendant was in a position to know that the prosecutor had not yet obtained an accusatory instrument capable of establishing trial jurisdiction. 1 The defendants were therefore able to make an informed decision either to insist upon the inclusion of all pre-indictment or pre-conversion delay or to waive their speedy trial rights by requesting adjournments. A Cade violation committed during a secret grand jury proceeding presents an entirely different scenario, however. When a defendant is prevented by circumstances from knowing that time may be includable, a valid waiver of this inclusion cannot reasonably occur.

Given that a waiver analysis does not apply to delay preceding a dismissal, the court must determine whether the principles articulated require the inclusion of this delay. In previous cases, there is still some vitality to the Colon court’s suggestion that the People may not claim CPL 30.30(4) exclusions until they obtain an indictment or information sufficient to bring defendant to trial.

The court did not address the excludability of delay that occurs while a defective indictment is pending.

In the instant case, the People had reason to know that they were acting illegally when they asked the grand jury to void its initial vote. Contrary to the People’s assertion, the Cade decision did not represent a pronounced, unexpected departure from existing law. The district attorney’s authority to act in relation to the grand jury has always been strictly limited by CPL Article 190. Moreover, the Court of Appeals’ decision in a case, provided the prosecutor with a strong indication that this statute would be narrowly construed. The fact that the district attorney has made it a practice consistently to violate the statute’s limitations does not vest the prosecutor with authority the legislature saw fit to withhold. The court could therefore conclude, that the People are chargeable with delay that occurred while an indictment was pending.

Although the court could apply the rationale articulated in previous cases,the court can discern no compelling justification for distinguishing indictments dismissed as a result of an evidentiary insufficiency from indictments dismissed because of other flaws in the grand jury proceedings. A dismissal always reflects a judicial judgment that a defect exists which, if raised in a motion to inspect and dismiss, would prevent the court from proceeding to trial. The Court in a case noted that CPL 30.30 should “be interpreted in light of its purposes and legislative history … so as to harmonize its provisions.” This statement reflects the view that courts should read the statute as an integrated scheme and avoid making unnecessary distinctions when applying its different sections. Given the court’s desire to minimize inconsistencies in the statute’s application, it would be unwarranted to make the applicability of 30.30(4) exclusions depend on the reason the underlying indictment is dismissed. The court therefore concludes pursuant to another case that the dismissal of an indictment for prosecutorial misconduct does not require the court to charge the People with otherwise excludable delay.

The foregoing analysis has important implications for the speedy trial analysis in this case. The criminal action commenced in February 1988 when the prosecutor filed a felony complaint in criminal court. The People were therefore required to announce their readiness within 182 includible days. A total of 309 days elapsed between February 1988 and December 1988, the day defendant filed the instant motion. The prosecutor must therefore show that at least 127 days are excludable to defeat defendant’s motion to dismiss.

Given that the court has already found 241 days excludable, it is unnecessary to consider the People’s argument that a Cade dismissal constitutes an exceptional circumstance requiri exclusion of delay resulting from the second grand jury presentation. Subtracting 241 excludable days from the 309-day total, only 68 days remain subject to CPL 30.30 review. If the court were to charge all this time to the prosecution, the People would still have ample time in which to bring this case to trial.

Accordingly, defendant’s motion to dismiss is denied by the Court.

The right of a party to a speedy disposition of cases should be observed in any case. Here in Stephen Bilkis and Associates, we make it a point that the timetable of a case was observed at all times to protect the rights of our clients. Our Kings County Grand larceny attorneys are always ready to help you. Call us now.

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