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People v. McIntosh

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 27, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
FAYOLA MCINTOSH, DEFENDANT-APPELLANT.

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 5 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.

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.

Mazzarelli, J. P., Sweeny, Freedman, Richter, Manzanet-Daniels, JJ.

6148/06

We determined on the co-defendant's appeal (People v Davis,__ AD3d, 892 NYS2d 359 [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 (892 NYS2d at 366), the victim's testimony at the first grand jury presentation that the co-defendant "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 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]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100527

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