People v. Davis, 19 N.Y.3d 265 (2012)
A prosecutor’s withdrawal of a case from a grand jury due to witness unavailability is not a de facto dismissal requiring court authorization for re-presentation unless the grand jury has fully considered the evidence and charges.
Summary
Defendants Davis and McIntosh were indicted for assault after an incident at a nightclub. The prosecution initially presented evidence to a grand jury against McIntosh only, as Davis had not yet been apprehended, but withdrew the case due to witness unavailability. Later, both Davis and McIntosh were indicted by a second grand jury. The Court of Appeals held that the withdrawal from the first grand jury was not the functional equivalent of a dismissal requiring court authorization before re-presentation, because the first grand jury had not fully considered the evidence and charges against both defendants.
Facts
Lynn Walker was severely injured in an altercation at a nightclub, allegedly instigated by Davis and joined by McIntosh. McIntosh was arrested shortly after the incident, while Davis was apprehended later. The People began presenting evidence to a grand jury against McIntosh before Davis was arrested, advising the jury that it was a “continued case.” Walker testified that both Davis and McIntosh assaulted her. The People withdrew the case due to witness unavailability and the grand jury’s term expiring. Later, the People presented evidence to another grand jury against both Davis and McIntosh, who were subsequently indicted.
Procedural History
The Supreme Court denied the defendants’ motions to dismiss the indictment. Davis was convicted of assault, while McIntosh was acquitted of first-degree assault but convicted of second-degree assault. The Appellate Division reversed the judgments, holding that the withdrawal from the first grand jury was the functional equivalent of a dismissal under People v. Wilkins, requiring court permission before re-presentment. The Court of Appeals granted leave to appeal and reversed the Appellate Division’s orders.
Issue(s)
Whether the People’s withdrawal of their case from the first grand jury presentation, due to witness unavailability, constituted the functional equivalent of a dismissal pursuant to CPL 190.75, requiring court authorization before re-presentment to a second grand jury.
Holding
Yes for McIntosh; No for Davis. The order is reversed because the People had instructed the first grand jury that only McIntosh was the target of the proceedings. As to McIntosh, no, because the proceedings before the first grand jury had not progressed to the point where it had fully considered the evidence and the charges against McIntosh.
Court’s Reasoning
The Court of Appeals distinguished this case from People v. Wilkins, which held that a pre-vote withdrawal of charges after the presentation was complete was the functional equivalent of a dismissal. The Court emphasized that Wilkins applies only in limited circumstances where the withdrawal is “fundamentally inconsistent with the objectives underlying CPL 190.75,” such as curtailing prosecutorial excess and maintaining grand jury independence (People v. Gelman, 93 N.Y.2d 314, 319 (1999)). For Davis, since the People never sought an indictment from the first grand jury against Davis, Wilkins is irrelevant since there were no charges against Davis to be withdrawn (see People v Santmyer, 255 AD2d 871, 871 [4th Dept 1998]). The Court found that the first grand jury had not fully considered the evidence and charges against McIntosh because the People intended to present additional witnesses and had informed the grand jury that it was a continuing case. The Court emphasized that there was no evidence that the People withdrew their case to find a more compliant grand jury. The court reasoned that the focus should be on “the extent to which the Grand Jury considered the evidence and the charge” (Wilkins, 68 NY2d at 274). Because the People withdrew the charges before fully presenting their case, it did not constitute a de facto dismissal requiring court authorization.