Defendant appeals from a judgment of the Supreme Court, New York County (Michael J. Obus, J. on inspection/dismissal motion; Edward J. McLaughlin, J. at jury trial and sentence), rendered March 4, 2008, convicting her of assault in the first degree (two counts) and assault in the second degree, and imposing sentence.
The opinion of the court was delivered by: Renwick, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
David Friedman, J.P., John W. Sweeny, Jr., James M. Catterson Dianne T. Renwick, Helen E. Freedman, JJ.
Following an interview with the complainant, who knew both of her alleged assailants, the police arrested the co-defendant, but were initially unsuccessful in arresting defendant. In the ordinary course of business, the People presented the case against the co-defendant to the grand jury. Although the prosecutor indicated at the outset of the grand jury proceedings that she was submitting the case against the co-defendant and made no mention of defendant, the prosecutor elicited detailed testimony from the complainant about the roles in the assault played by both persons, each of whom was identified by name. The police arrested defendant three days after the complainant testified. One week later, on the last day of the grand jury's term, the prosecutor advised the grand jurors that she was withdrawing the case. Several months later, without requesting authorization under CPL 190.75, the prosecutor re-presented the case to a second grand jury, which, after hearing testimony from the complainant and additional witnesses, indicted both defendant and co-defendant. Under these circumstances, the resubmission of defendant's case to a second grand jury without leave of court violated the proscription of CPL 190.75, and the indictment that followed should be dismissed.
This matter stems from a nightclub fight that took place on June 11, 2006, between the complainant Lynn Walker, defendant Makeda Davis and her friend, co-defendant Fayola McIntosh. The next day, the police arrested McIntosh. On June 20, 2006, the Assistant District Attorney (ADA) who appeared before the grand jury announced that she was presenting three felony charges against McIntosh: two counts of assault in the first degree and one count of assault in the second degree. The ADA then advised the grand jury that, while they would hear from the victim, Walker, that day, the case would be continued at a later date.
During the first grand jury proceedings, the ADA elicited testimony from Walker about being assaulted by defendant and McIntosh. In particular, Walker testified that on June 11, 2006, she was in the nightclub when, at about 2:00 A.M., she had an argument with defendant that ended in a physical fight that was broken up by club security. Approximately 30 minutes later, defendant walked by Walker and "swiped something at [her] face." Walker, however, could not identify what defendant had supposedly "swiped." "I really didn't see exactly what it was. It was just some type of object in her hand . . . She did not touch me with it. She just put it like right here."
After swiping the object at Walker's face, defendant began to hit her. Defendant then "grabbed [Walker's] hair" and started to punch her on the left side of her face. At that point, McIntosh came over and hit Walker on the right side of her forehead, and then continued hitting her in the back. Walker did not see whether McIntosh had anything in her hand when she struck her. After a crowd gathered, defendant cut Walker's hair. Once the fight had been broken up, Walker "felt a lot of blood running down" her face and "a big gigantic red just blot on [her] dress." Immediately thereafter, Walker went to the hospital and received 40 stitches to her forehead, the left side of her face, "behind [her] ear," as well as a liquid stitch on her hand. Walker received pain medication and was unable to return to work after the accident. During her testimony, she took off her head scarf and showed the grand jury her injuries, specifically pointing to her "cut[s]." Photographs of Walker's "cuts" taken the day of the grand jury proceedings were submitted in evidence.
At the conclusion of the presentation of the complainant's testimony, the ADA asked the grand jurors if they had any questions, which they did. The grand jurors asked Walker if she had seen the hands of defendant and McIntosh at the time they fought with her. Addressing herself first to defendant's conduct, Walker said: "Well, her hand was closed, so, I mean, it looked like a little whiteness on it, then something. It looked like her whole hand was around whatever it was. Maybe it might have been long, maybe it fit in her whole hand, or maybe it had a little handle, but I didn't see it." When asked by grand jurors whether she saw if McIntosh had an object in her hand, Walker replied, "No . . . when she hit me, I just did not see that coming, so I was not looking at her." In response to other questions from grand jurors, Walker further testified that, when defendant and McIntosh were striking her, she was striking them back "[w]ith my fists."
Walker was excused and no further evidence was presented. Three days later, defendant voluntarily surrendered to the police. Seven days later, on June 30, 2006, the last day of the grand jury's term, the ADA advised the grand jury that she was withdrawing the case due to "witness unavailability."
Approximately four months later, in October of 2006, the ADA, without requesting judicial leave, appeared before a second grand jury to present evidence in the case against defendant and McIntosh. The same three felony charges from the first grand jury were submitted to the second grand jury. Walker again testified about the assault and again stated that defendant "swiped an object in front of [her] face." When asked whether she could see what the object was, Walker replied, "Not really. I mean, it looked like some type of blade, but I couldn't really see it because she did it real fast, like jumping at me."
When the prosecutor asked Walker what she "fe[lt]" when she was being "struck," Walker replied, "when [defendant] hit me on the side of my face, I just felt, like, a drag. Like, it was just, like. And then, her hand kind of drug down my face. It didn't feel like she hit me. And that was it. I felt it kind of drug. And the same thing, really, on this side of my face when Fayola ran over." Walker indicated that she "started getting a little blurry" and "pretty much started bleeding after that."
The rest of Walker's testimony was similar to her testimony before the first grand jury, except she indicated that she had scarring and that her scars were still visible. The photographs of Walker's injuries, taken nine days after the incident, were again admitted into evidence. In addition to Walker, two other witnesses testified before the second grand jury. Barbara Smith, Walker's friend, testified that she observed defendant and McIntosh cut Walker with razors.
Dr. Sandra Haynes, an attending physician at St. Vincent's Hospital, testified that, on the day of the incident, she examined and treated Walker. Dr. Haynes indicated that she had reviewed Walker's medical records pertaining to her treatment at St. Vincent's, and the records were admitted into evidence. Dr. Haynes described Walker's injuries and treatment, which included stitches, and testified that, with "a reasonable degree of medical certainty," Walker's lacerations "were consistent with injury caused by a sharp instrument." When asked what the possible long-term effects were from those lacerations, Dr. Haynes replied that Walker "will have permanent scarring."
After the second grand jury presentation, defendant and McIntosh were indicted on two counts of first-degree assault and a single count of second-degree assault. Before the charges against the co-defendant were severed, defendant, without the benefit of seeing the transcript of the first grand jury proceeding, moved, in an omnibus motion, to inspect the grand jury minutes and to dismiss the indictment against her on the ground that the evidence was legally insufficient to support the indictment. Defendant also requested that the court determine, among other things, whether "the presentation of evidence [was] withdrawn prior to a vote being taken and then resubmitted." Supreme Court granted the motion to inspect the grand jury minutes, but denied the motion to dismiss the indictment or reduce the charges, finding that the grand jury evidence was legally sufficient to support the charges and that the proceedings were properly conducted.
Prior to severance, the co-defendant also moved to dismiss the indictment against her on the ground that the People had improperly failed to seek judicial authorization before presenting the case to the second grand jury. Defendant did not join in that motion. Supreme Court denied the motion, finding that the judicial authorization was not necessary under the circumstances of the case. After severance, the jury convicted defendant of two counts of assault in the first degree and one count of assault in the second degree. Supreme Court sentenced defendant to an aggregate prison term of 91/2 years, to be followed by 5 years of post-release supervision.*fn1
On appeal, defendant asserts that since the People's case was essentially complete at the time that it was withdrawn from the first grand jury, the withdrawal constituted a dismissal of the charges, and thus the People were required to obtain leave to represent the case to the second grand jury. The People counter that defendant's argument with respect to the improprieties in the grand jury proceedings is unpreserved. The People further aver that, on the merits, the argument should be "summarily rejected" because "the first grand jury heard evidence in the case against McIntosh alone" and "never even heard evidence that was directed at defendant as the target." Finally, the People assert that even if defendant was the subject of the first grand jury presentation, judicial authorization was not required before presenting this case to the second grand jury because there was insufficient evidence for the first grand jury to make a decision about "essential elements of the crimes with which defendant was being charged."
Preliminarily, it must be pointed out that the People cannot seriously argue that defendant has failed to preserve her claim that her indictment upon resubmission to a grand jury without proper leave of court violated CPL 190.75. The People point out that defendant did not join in the co-defendant's motion to dismiss the indictment on the ground that the prosecutor improperly re-presented her case without court approval. However, since defendant requested in her omnibus motion that the court determine whether "the presentation of evidence [was] withdrawn prior to a vote being taken and then resubmitted," it is clear that the issue has been adequately preserved (cf. People v Brown, 81 NY2d 798  [defendant failed to preserve his claim that the grand jury proceeding was defective since he did not specify, in his omnibus motion, the grounds now claimed]; People v Julius, 300 AD2d 167, 168 , lv denied 99 NY2d 655  [defendant failed to preserve his claim that prosecutor improperly re-presented his case to the grand jury]).
"CPL 190.75 prohibits the District Attorney's office, without leave of court, from resubmitting a charge that has been previously dismissed by the Grand Jury. The statute was enacted to curb abuses that resulted from the common law rule that allowed prosecutors to resubmit charges to successive Grand Juries ad infinitum until one voted an indictment" (People v Montanez, 90 NY2d 690, 693 , citing People v Wilkins, 68 NY2d 269, 273 ). Thus, "District Attorneys are allowed only one bite at the apple; if unsatisfied with the [g]rand [j]ury's dismissal of a charge, they must seek leave of court to resubmit the matter" (People v Montanez at 693). Leave may be ...