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Criminal Procedure Law


In this proceeding, a man seeks to enjoin the district attorney from prosecuting an indictment which was filed by the grand jury. The man asserts that the district attorney lacks jurisdiction to proceed.

The matter was started when the man was arrested and charged with assault in the second degree, a class D felony. He was also charged with two class A misdemeanors which includes resisting arrest and DWI and obstructing governmental administration in the second degree. The man was then arraigned upon the felony complaint in the criminal court.

The man’s attorney appeared in the court and the assistant district attorney made an oral application to the court for an order reducing the matter to a misdemeanor complaint by striking the charge. Then, the court responded by transferring the matter to a different part, and it is apparent that both the parties and the court itself took it to mean that the prosecution’s application had in fact been granted.

Subsequently, the parties again appeared in the court. The prosecutor served the man with notice that the matter was going to be presented to the grand jury. The matter was then postponed. The court admonished the prosecutor that the case was reduced and was still in misdemeanor form. But, the assistant district attorney did not argue with the court’s assertion that the case was in misdemeanor form.

After that, the man made an oral motion to dismiss the accusatory instrument. The court, as well as both of the parties, apparently treated the accusatory instrument in question as a misdemeanor complaint or information subject to dismissal by the court on speedy trial grounds. The assistant district attorney expressed no opposition to the motion.

Then, the grand jury voted to indict the man for the crimes of assault and DWAI in the first degree, assault in the second degree and resisting arrest. The indictment was filed and the man was arraigned upon the indictment. The man thereafter made a motion to dismiss the indictment.

The prosecution also asserted that the grand jury retained jurisdiction to indict the man on felony charges in spite of the fact that the court had previously dismissed an accusatory instrument which had been premised on the same criminal transaction. Consequently, the Supreme Court denied the motion.

The court found that the man’s arguments are basically without merit. Neither statutory nor constitutional double jeopardy principles are at stake. Moreover, there is no constitutional or statutory provision which prohibits the grand jury from indicting a suspect on charges which were previously dismissed by the local court.

Sources revealed that the Criminal Procedure Law prohibits the bringing of a new prosecution based upon charges which had been contained in an indictment or Superior Court Information which had previously been dismissed on the ground that the offender had been denied his right to a speedy trial. However, the parallel provision of the Criminal Procedure Law which governs the dismissal of misdemeanor complaints or information on speedy trial grounds conspicuously lacks a similar terms.

Subsequently, the previous statement of the court confirmed the validity of the position advanced by one court, which had held that the Legislature’s omission from the Criminal Procedure Law of a provision similar to that contained in the former code. Based on records, the former code prohibited the reinstitution of a misdemeanor prosecution after a previous misdemeanor prosecution based on the same offense had been dismissed on the ground of failure to prosecute.

Sources revealed that most courts have followed the rationale expressed in the previous related case which seems to have been validated by the statement of the court of appeals. In accordance with the reasoning, it has been held that a grand jury may indict a suspect for crimes stemming from a criminal transaction which was the subject of the prior accusatory instrument which had been dismissed by the local court on non-constitutional grounds unrelated to the merits. Also, several other lower courts have also recognized that nothing in the Criminal Procedure Law prohibits the renewal of a misdemeanor prosecution after the entry of an order of dismissal.

The court stated that the former cases reflect the simple fact that there is no constitutional or statutory law which forbids the reinstatement of a misdemeanor or felony prosecution after the issuance of an order of dismissal.

Moreover, the man did not cite any constitutional or statutory provision which expressly announces the rule of law which he would have the court recognize, such as that a grand jury may not indict a person on charges arising from a criminal transaction which had been the subject of a prior accusatory instrument, where that prior accusatory instrument was dismissed by the local court.

In addition, recognition of such a rule on the court’s part would be contrary to a century of judicial tradition whereby the courts have afforded the grand jury the widest possible latitude in the exercise of their powers and insisted that in the absence of a clear constitutional or legislative expression.

The grand jury is presumed to have the power to issue such an indictment, and the district attorney is presumed to have the power to prosecute.

The district attorney seeks dismissal of the present proceeding on an alternative ground. He argues that the action taken by the court did not constitute a reduction of the felony complaint to a misdemeanor complaint or information, because the court failed to comply with the procedure.

Based on the principle that the original DWI felony complaint remained pending, in spite of the fact that the court believed it to have been reduced, the district attorney contends that the action subsequently taken by the court, the dismissal of the instrument on speedy trial grounds was not authorized by law and hence is a nullity. The district attorney concludes his syllogism by contending that the court’s dismissal, being a nullity, must be treated as though it never occurred, so that, in effect, a proper felony complaint was pending at all times between the man’s original arraignment, until his indictment. If the conclusion is correct, then the man’s argument in the present proceeding would clearly be unfounded.

Since the present proceeding must be dismissed, the court needs not to address the alternative argument. The court note, however, that it is apparently a common practice for local courts to accomplish or to assert to accomplish the conversion of a case from felony to misdemeanor status by making notations on a docket sheet, rather than on the accusatory instrument itself. The court further stated that whether such notations may serve to accomplish the conversion of felony complaints to misdemeanor complaints or information, and whether the holding in the previous related case that such purported conversions are void, are questions which the court need not to decide.

Sources revealed that whether the instrument which was dismissed by the court on speedy trial, grounds be considered a felony complaint or a misdemeanor complaint or information. The fact remains that the grand jury had the jurisdiction to indict the offender for crimes which had been charged in the prior instrument. Consequently, there being no jurisdictional impediment to the prosecution of the indictment, the appeal is denied and the proceeding is dismissed, without costs or disbursements.

It is every person’s right to receive appropriate legal representation. Whenever you need legal assistance with your criminal case, you can hire the Queens County Criminal Lawyer. You can also ask Stephen Bilkis and Associates office for the expert Queens County DUI Attorney or a member of the Queens County Drug Crime Lawyer.

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