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The People &C v. Makeda Davis

October 25, 2011

THE PEOPLE &C., APPELLANT,
v.
MAKEDA DAVIS, RESPONDENT.
THE PEOPLE &C., APPELLANT,
v.
FAYOLA MCINTOSH, RESPONDENT.



The opinion of the court was delivered by: Pigott, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The primary issue on these appeals is 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 and our holding in People v Wilkins (68 NY2d 269 [1986]). We conclude that under the circumstances of each case it did not.

I.

The assault charges lodged against defendants Makeda Davis and Fayola McIntosh stem from a June 11, 2006 altercation at a nightclub allegedly instigated by Davis and joined in by McIntosh resulting in Lynn Walker sustaining severe injuries. McIntosh was arrested shortly after the incident; Davis was not apprehended until some time later.

On June 20, 2006, before police located and arrested Davis, the People began presenting evidence to a grand jury. Before calling the complainant, the People advised the jury that they were presenting evidence against McIntosh only and that "[t]his will be a continued case," meaning that not all evidence would be submitted in one session.

Walker then testified that Davis, an acquaintance of hers, assaulted her. She further testified that McIntosh, also an acquaintance, joined in the assault. Ten days later, on June 30, 2006, the People advised the grand jury that they were withdrawing the case due to witness unavailability and the fact that it was this grand jury's last day.

Four months later, the People presented evidence to another grand jury, this time naming both Davis and McIntosh as targets, and asking it to consider the same charges against both defendants. The People called three witnesses: Walker, the attending physician who treated Walker the night of the incident, and an eyewitness. The grand jury indicted both defendants on two counts of assault in the first degree and one count of assault in the second degree.

Supreme Court denied defendants' motion to dismiss the indictment on the ground that the People should have obtained court authorization pursuant to CPL 190.75 (3) before representing the case to a second grand jury. Following trial, Davis was convicted of all three assault counts. McIntosh was acquitted of the first-degree assault counts, but convicted of assault in the second degree. Davis and McIntosh brought separate appeals, claiming that the People should have obtained court authorization pursuant to CPL 190.75 (3) before representing their cases to a second grand jury.

In People v Davis, the Appellate Division, with two Justices dissenting, reversed the judgment of conviction and dismissed the indictment, but granted the People leave to apply for an order of Supreme Court permitting them to re-submit the charges to another grand jury, holding that the People's pre-vote withdrawal of the case from the first grand jury constituted "the functional equivalent of a dismissal" under this Court's holding in People v Wilkins, requiring the People to obtain court permission before re-presentment (72 AD3d 53, 65 [1st Dept 2010]).

In People v McIntosh, the Appellate Division unanimously reversed, relying on its rationale in Davis, and dismissed the indictment, once again with leave for the People to seek leave to resubmit the charges to another grand jury. A Justice of the Appellate Division granted the People leave to appeal in Davis, and a Judge of this Court granted the People leave to appeal in McIntosh, and we now reverse in both.

II.

As relevant to these cases, CPL 190.60 (4) provides that once a grand jury hears and examines the evidence, it may among other options, dismiss the charge before it, as provided in section 190.75. A grand jury must dismiss a charge lodged against a designated person where the evidence before it is legally insufficient to demonstrate that such person committed the crime charged or any other offense, or where it is not satisfied that there is reasonable cause to believe such person committed such crime or any other offense (see CPL 190.75 [1] [a], [b]). In such a case, the dismissed charges may be represented to another grand jury but only after the People obtain court authorization (see CPL 190.75 [3]). This rule 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 [1997] citing Wilkins, 68 NY2d 269, 273, supra).

Not every dismissal is the result of a grand jury's explicit action pursuant to CPL 190.60 and 190.75, however. In Wilkins, we held that the People's pre-vote withdrawal of charges from the grand jury, after the presentation was complete but before the grand jury was charged on the law, was the functional equivalent of a dismissal for purposes of CPL 190.75 (3), requiring the People to obtain court authorization before re-submission. There we held that the essential issue in deciding whether the People's withdrawal from the grand jury should be treated as a de facto dismissal was "the extent to which the Grand Jury considered the evidence and the charge" (68 NY2d at 274). The People's first presentation in Wilkins "was, as far as the prosecution was concerned, complete," and we concluded that because all of the witnesses had testified and the only thing left for the People to do was charge the jury on the law, the People's "unilateral withdrawal so late in the game must be deemed a dismissal, regardless of the good faith of the withdrawal."

We have made clear that Wilkins applies in only "limited circumstances" where the People's withdrawal of a case from the grand jury "is fundamentally inconsistent with the objectives underlying CPL 190.75" (People v Gelman, 93 NY2d 314, 319 [1999]). Such objectives include curtailing prosecutorial excess in resubmitting charges repeatedly until a grand jury votes an indictment (see Wilkins, ...


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