People v Milton
Annotate this CaseDecided on April 5, 2006
Supreme Court, Kings County
The People of the State of New York,
against
Ramsey Milton, Defendant.
6506/05
Sheryl L. Parker, J.
The defendant moves to dismiss the indictment alleging that the prosecutor impermissibly withdrew the matter from the grand jury and then presented it to a different grand jury without permission from the Court.
The defendant is charged with two counts of criminal sale of a controlled substance in the third degree (P.L. §220.39) and two counts of criminal possession of a controlled substance in the seventh degree (P.L. §220.03). It is uncontested that the matter was presented to two separate grand juries before this indictment was voted. In the first presentation, under indictment number 6104/05, the grand jury only heard evidence relating to one sale of a controlled substance occurring on August 17, 2005. The second presentation, under indictment number 6506/05, evidence was presented relating to two sales, the first on August 17, 2005 and the second on August 27, 2005. The defendant testified in both presentations. At the conclusion of the evidence in the first presentation the grand jury indicated that it was unable to reach a decision on the charged counts.[FN1] The prosecutor did not continue the presentation to the first grand jury and ten days later the prosecutor presented evidence to a second grand jury and the instant indictment was voted.
Criminal Procedure Law section 190.60 provides five possible actions available to a grand jury, including indictment and dismissal.[FN2] Notably, it does not provide for "no action" or a [*2]hung jury. The question presented here is whether the People properly presented the matter to the second grand jury without seeking permission of the Court pursuant to Penal Law §190.75.
Withdrawal of a case
In People v Wilkins, 68 NY2d 269 (1986), the Court of Appeals held that after a case has been presented to a grand jury and then withdrawn before legal instructions and a vote, the withdrawal is tantamount to dismissal. The Court reasoned that this was necessary to prevent a prosecutor from withdrawing a case from a grand jury that may not appear receptive to the prosecutor's case and then re-presenting it to second and more compliant grand jury. Since such action would circumvent the intent of the law, leave of the Court must be obtained before the case can be presented to another grand jury. ( Wilkins, supra, at 275).
In a later case, the Court of Appeals distinguished Wilkins. In People v Gelman, 93 NY2d 314 (1999), presentation of limited evidence and a subsequent withdrawal from the grand jury did not constitute a dismissal. The evidence presented in Gelman did not even mention the defendant and the Court concluded that the dangers of prosecutorial excess described in Wilkins were not present.
Additional evidence after an inability to vote an indictment
In 2004 the Court of Appeals limited its decision in Wilkins by finding that the inability of 12 grand jurors to reach a decision does not constitute a dismissal. The prosecutor may present additional evidence to the same grand jury without seeking leave from the court. (People v Aarons, 2 NY3d 547 [2004]). By returning to the same grand jury the forum shopping concerns posed in Wilkins were not present.
Re-presentation after an inability to vote an indictment
In the instant case the People presented the testimony of the undercover officer and detective involved in the incident of August 17, 2005, and then the defendant testified before the grand jury. After a charge on the law and submission of the charges the grand jury foreperson reported no true bill on all the counts presented. (C.P.L. §190.60[4]). After being asked by the prosecutor whether that decision was by a vote of 12 or more jurors the foreperson replied "yes". After leaving the grand jury room, the assistant district attorney then re-entered the room and the following colloquy occurred:
Prosecutor: Madam Foreperson, it's my understanding that previously you stated that there was a Not (sic) True Bill due to the fact that it was a vote of less than [*3]twelve jurors at this point is that correct?[FN3]
Foreperson: Yes
Prosecutor: There are twelve or more jurors present at this point, but twelve jurors, at this point, voted a No True Bill?
Foreperson: No.
Prosecutor: Twelve of you must vote whether for a No True Bill, True Bill or a No Action. I'll step out of the Grand Jury room so and can you (sic) deliberate and vote on the matter.
The assistant district attorney then left the room and again returned.
Prosecutor: Ladies and gentlemen of the Grand Jury, I want to clarify for the record that it is my understanding that there's never been a vote on whether or not on (sic) a No True Bill. That you only state (sic) a vote of a No True Bill.
Secretary: Yes, there has never been a vote.
Prosecutor: Mr. Foreperson, did twelve or more jurors present voted (sic) on No True Bill?
Foreperson: No.
Prosecutor: That never happened?
Foreperson: Yes.
Prosecutor:Let the record so reflect. You must vote by a vote of twelve or more for a True Bill or twelve or more for a No True Bill. I wanted to clarify that for the record.
Foreperson:Yes, okay.
Prosecutor:You must consider each charge separately as to each individually. That means you should vote twelve or more for a True Bill or No True Bill on each of the charges.
The assistant district attorney then reread the charges at the request of the grand jury. Upon returning to the Grand Jury room after their deliberations the following exchange took place:
Prosecutor:Members of Grand Jury, what is your vote?
Foreperson:There is a No Action.
Prosecutor:Let the record so reflect.
As stated previously, "no action" is not an option sanctioned by C.P.L. §190.60. Erroneously informing the grand jury that they "must vote whether for a No True Bill, True Bill or a No Action" and then removing the case from the grand jury after their return of a "No Action" was precisely the subversion of the grand jury's power that the Court in Aarons prohibited. The later submission to a second grand jury, in a successful attempt to find a more receptive grand jury, was precisely the forum shopping that the Court in Wilkins prohibited. [*4]Reading Wilkins and Aarons together, the fact that the grand jury was temporarily unable to reach a decision on the charges did not authorize the prosecution to present the counts to a new grand jury without permission of the Court.
The prosecution was left with other options that could have been pursued. This Court suggests a four-step process to be followed when a grand jury is unable to reach a vote by 12 or more jurors. First, inquire if the grand jurors have questions relating to the testimony, exhibits or the charge. Second, present additional evidence, as in People v. Aarons, if available. Third, charge the grand jury on its duty to evaluate the evidence and come to a decision as authorized by C.P.L. §190.60.[FN4] Fourth, after following these steps, if the grand jury is still unable to reach a decision by a vote of 12, then request the Court's permission to withdraw the case and to re-present it to another grand jury. Although the right to re-present to a second grand jury is not absolute (People v. Dykes. 86 AD2d 191 [1982]; People ex rel. Flinn v. Barr, 259 NY 104 [1932]; People v. Pomie, __ Misc 3d __, 2006 NY Slip Op 26065 [Sup Ct, Kings Cty, January 17, 2006]), if the prosecutor demonstrates the steps taken to secure a decision by a vote of 12 or more grand jurors, it would be clearly within the Court's discretion to allow another presentation. (People v. Pryor 5 AD3d 222 [2004]).
Finally, the prosecution presented a second and unrelated matter occurring on August 27, 2005 to the second grand jury which was not presented to the first grand jury. The prosecution's failure to seek permission prior to resubmitting the first charges to a another grand jury does not require dismissal of the new charges. (C.P.L. §210.35 [5]; §190.75[3]). Accordingly, only counts one and two, which were the subject of the first presentation, are dismissed.
The foregoing constitutes the decision and order of the court.
Dated: Brooklyn, New York
April 5, 2006
__________________________
J.S.C.
Footnotes
Footnote 1: The Grand Jury foreperson first stated "There is a no true bill" and subsequently stated "There is a No Action'."
Footnote 2:CPL § 190.60 : Grand jury; action to be taken.
After hearing and examining evidence as prescribed in section 190.55, a grand jury may:
1. Indict a person for an offense, as provided in section 190.65;
2. Direct the district attorney to file a prosecutor's information with a local criminal court, as provided in section 190.70;
3. Direct the district attorney to file a request for removal to the family court, as provided in section 190.71 of this article;
4. Dismiss the charge before it, as provided in section 190.75;
5. Submit a grand jury report, as provided in section 190.85.
Footnote 3: There is nothing in the record to indicate how the assistant district attorney learned this information.
Footnote 4: Courts have long recognized a trial court's authority to advise a deadlocked jury on their further deliberations. Jurors are instructed to resume deliberations, listen carefully to their co-jurors, but not acquiesce to the conclusions of others. (Allen v. United States, 164 US 492 [1896]). Courts may encourage jurors to "make one final effort to review the evidence and reach a verdict one way or the other." (People v. Pagan, 45 NY2d 725 [1978]).
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