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The People &C v. James Extale

March 27, 2012


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

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

We hold that a prosecutor does not have the unilateral power to dismiss a count of a grand jury indictment over a defendant's objection. Whether such a count should be dismissed at the prosecutor's request is an issue to be decided by the court in its discretion.


In 2004, defendant drove his pickup truck into a police officer, injuring her seriously. A grand jury indicted him for several crimes, including first degree assault (intentionally causing serious physical injury by means of a dangerous instrument, Penal Law § 120.10 [1]) and first degree vehicular assault (with criminal negligence, causing serious physical injury while driving while intoxicated, in the presence of certain aggravating factors, Penal Law § 120.04 [1], [2] [b]; see former Penal Law § 120.03 [1]). Defendant was convicted of these and other charges, but the Appellate Division ordered a new trial on the first degree assault and first degree vehicular assault counts, holding that they required inconsistent mental states and should have been submitted to the jury in the alternative (People v Extale, 42 AD3d 897 [4th Dept 2007]).

At the second trial, before jury selection, the prosecutor announced to the judge: "The People do intend to withdraw the second count of the indictment and proceed solely on the Assault in the First Degree count." Defense counsel objected, and the prosecutor replied tersely: "I believe the People can choose what charges to go forward on, and we're doing so." The court agreed with the prosecutor, saying: "I believe you have the authority, if you wish to withdraw the second count of the indictment," and the trial proceeded on one count only.

Defendant was convicted of second degree assault (Penal Law § 120.05 [4], recklessly causing serious physical injury by means of a dangerous instrument) as a lesser included offense of first degree assault. The Appellate Division affirmed, rejecting defendant's argument "that County Court erred in allowing the prosecutor to withdraw the count charging him with vehicular assault in the first degree" (People v Extale, 78 AD3d 1519, 1520 [4th Dept 2010]). A Judge of this Court granted leave to appeal, and we now reverse and order a new trial.


Usually, of course, a defendant is happy to have a charge against him dismissed, and it is the People who oppose dismissal. But a role reversal can occur when a defendant, not optimistic about the likelihood of acquittal, wants the jury to have a chance to compromise or exercise mercy by convicting him of a lesser crime (see People v Leon, 7 NY3d 109, 113-114 [2006]). This line of thinking often leads defendants to request submission of a lesser included offense, in addition to the offense charged in the indictment, and the defendant is entitled to have such an offense submitted "if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater" (CPL 300.50 [1]; see CPL 300.50 [2]).

Here, the crime that defendant wanted the jury to consider, and the People did not, was not a lesser included offense, but one of the offenses for which defendant was indicted. The People argue that they have discretion to withdraw such a count. We disagree: the discretion is the trial court's, not the People's.

There was a time -- almost two centuries ago -- when the power to dismiss a count of an indictment was the prosecutor's, and the prosecutor's alone. At "early common law" dismissal was by nolle prosequi, which only a prosecutor, not a court, could enter (People v Douglass, 60 NY2d 194, 201-202 [1983]). In 1828, however, the prosecutor's power was limited by a statute requiring court approval (Revised Statutes of New York, Part IV, ch II, tit IV, § 54 at 728 [1st ed 1829]), and in 1881 the nolle prosequi was abolished and the power to dismiss transferred from the prosecutor to the judge. The 1881 Legislature adopted the Code of Criminal Procedure, which included the following sections:

"§ 671. Court may order indictment to be dismissed "The court may, either of its own motion, or upon the application of the district attorney, and in furtherance of justice, order an action, after indictment, to be dismissed.

"§ 672. Nolle prosequi abolished; no indictment to be dismissed or abandoned, except according to this chapter "The entry of a nolle prosequi is abolished; and neither the attorney general, nor the district attorney, can discontinue or abandon a prosecution for a crime except as provided in the last section" (former Code of Criminal Procedure §§ 671, 672).

These two sections remained in force until the Criminal Procedure Law replaced the Code of Criminal Procedure in 1970. At that time, the substance of section 671 was incorporated in what is now CPL 210.40 (3), which says:

"An order dismissing an indictment in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court ...

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