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Second Indictment of Defendant Nullifies First Indictment


The People of the State of New York are the plaintiffs in this case. The defendant of the case is Gus Franco. The case is being heard in the criminal term of the Queens County Supreme Court in the state of New York.

The defendant has moved to have the instant indictment against him dismissed. The defendant basis his argument on the grounds that there is a legal impediment for the conviction of the crimes that he is being charged with. This motion is necessary at this point in the case as there has been an issue of evidence being re-submitted in the case. The District Attorney is seeking re-submit evidence to a second grand jury and this has resulted in no true bill on all counts of the indictment.

Case History

On the 26th of December, 1991 a grand jury heard testimony regarding a stabbing incident that involved the defendant. The incident in question occurred on the 21st of December, 1991 and resulted in the death of Craig Sohl and physical injuries to Virginia Potter. At the end of the hearing in front of the first grand jury a true bill was voted against the defendant for the charges of second degree murder, two counts of first degree assault, two counts of second degree assault, and one count of criminal possession of a weapon in the fourth degree.

A decision made on the second of April, 1992 found there was enough evidence provided in the case to sustain the counts 1, 2, 4, 5, and 6 of the indictment. The motion by the defendant to have these counts dismissed was denied. The third count that charged first degree assault was dismissed. The People were not granted leave to re-submit this particular charge to another grand jury. The People did not petition for this relief.

Suppression hearings were heard in the matter and the court ordered the suppression of one of the post-arrest oral statements that he made to the police and the suppression of identification testimony relating to three different line ups.

During the months of September through October the trial assistant district attorney informed the attorney of the defendant that it was possible that further evidence was going to be submitted to support an additional charge of murder in the second degree and this evidence was going to be introduced in front of a second grand jury.

On the 9th of October, 1992, the People started the process of presenting evidence to a second grand jury.

Case Discussion and Decision

This case has presented a peculiar circumstance. The second grand jury decided not to indict the defendant on any of the ten charges that were submitted to it. This has created a legal nullification of the first indictment and has rendered the decision made by the first grand jury as invalid. This leaves the District Attorney with no valid indictment to charge the defendant with. For this reason, the court finds in favor of the defendant. The motion to have all charges in the original indictment dismissed is granted.

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