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Defendant Attacked While Swimming in the Ocean in Queens


This is a case of appeal being heard in the Supreme Court of the State of New York in the Appellate Division in the Second Department. The appellant of the case is the People of the State of New York. The People are represented by Richard A. Brown, District Attorney of Kew Gardens with Nicoletta J. Caferri, Steven J. Chananie, and Barbara D. Underwood for counsel. The respondent of the case is Pedro Alvarez. The defendant is represented by the law offices of Michael Vincent Ricci located in Whitestone. The counsel for the defendant is Robert A. Katz. The case is being heard in front of Rosenblatt, J.P., Lawrence, Miller, and Pizzuto, JJ.

The People of the State of New York are appealing an order that was made by the Supreme Court of Queens County. The order is from the 8th of September, 1992 and granted the defendant the motion to have the indictment made against him dismissed.

Case Background

A New York Sex Crimes Lawyer said the defendant was charged in an indictment for attempted murder in the second degree, first degree attempted rape, first degree assault, and second degree assault. These charges came from an incident that occurred on the 23rd of August, 1991.

The complainant in the case stated that she was attacked while swimming in the ocean at Far Rockaway in Queens.

On the tenth of February, 1992, the Supreme Court granted a motion to the defendant to have the charges of attempted rape in the first degree dismissed.

The prosecutor in the case presented the case again to another Grand Jury. However, instead of only presenting the attempted rape charge the prosecutor presented all of the charges made against the defendant again. Additionally, the prosecutor added an additional charge to the indictment for reckless endangerment in the first degree.

The People used the same witnesses in the second case as they had used during the first case. However, the defendant, who had not testified during the first Grand Jury hearing, did testify in the second Grand Jury hearing. A New York Sex Crimes Lawyer said the second Grand Jury voted for a no true bill and the defendant’s motion for dismissal of the original indictment was given.

Court Discussion and Decision

The determination that was made by the second Grand Jury nullified the decision made by the first Grand Jury. A Nassau County Sex Crimes Lawyer said it made the first indictment invalid and created a legal issue for the conviction of the defendant for the offenses charged against him. For this reason, the indictment had to be dismissed.

After reviewing the case it is determined that the right decision has been made in this case. The indictment against the defendant had to be dismissed based on the law. A Queens Sex Crimes Lawyer said the prosecutor only re-tried the issue of the charge for attempted rape, the other charges of the indictment would stand. However, by choosing to retry all of the issues in the indictment and adding an additional charge to the original indictment, the ruling of the second Grand Jury must stand.

The court rules in favor of the defendant and all charges made in the indictment are dismissed.

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