People v McIntosh

People v McIntosh 2010 NY Slip Op 04506 [73 AD3d 653] May 27, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2010

The People of the State of New York, Respondent,
v
Fayola McIntosh, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Lily Goetz of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael J. Obus, J., at dismissal motion; Laura A. Ward, J., at jury trial and sentence), rendered October 16, 2008, convicting defendant of assault in the second degree and sentencing her, as a second felony offender, to a term of five years, unanimously reversed, on the law, and the indictment dismissed, with leave to the People to apply for an order permitting resubmission of the charges to another grand jury.

We determined on the codefendant's appeal (People v Davis, 72 AD3d 53 [2010]), the indictment was unauthorized because the prosecutor did not obtain permission to present the case to a second grand jury. The People have not shown any basis for reaching a different result here. As we noted in Davis (72 AD3d at 62), the victim's testimony at the first grand jury presentation that the codefendant "swiped an object in front of her face, hit her while holding the object in her hand, and 'cut' her hair causing her to bleed, as well as the display of her 'cuts' to the jury," was legally sufficient to establish that the victim was assaulted with a dangerous instrument. The further testimony that defendant joined in the attack by "striking" and "hitting" the victim in the head and back was sufficient to establish defendant's liability as an accomplice. The fact that the testimony did not specifically place a weapon in defendant's hands is of no consequence.

We reject defendant's argument that the People should be precluded from presenting the case to a third grand jury. The rule against third presentations (see CPL 190.75 [3]) does not apply where there has been a dismissal by a court (People v Morris, 93 NY2d 908 [1999]; see also People v Wilkins, 68 NY2d 269, 277 [1986]).

In view of this disposition, we find it unnecessary to address defendant's remaining [*2]claims, except that we find the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Concur—Mazzarelli, J.P., Sweeny, Freedman, Richter and Manzanet-Daniels, JJ.