S. Dean, Center for Appellate Litigation, New York (Susan H.
Salomon of counsel), for Doran Allen, appellant.
Allen, appellant pro se.
G. Hirsch, New York, for Bevon Burgan, appellant.
D. Clark, District Attorney, Bronx (Justin J. Braun of
counsel), for respondent.
Acosta, P.J., Manzanet-Daniels, Mazzarelli, Gische, Kahn, JJ.
Supreme Court, Bronx County (Peter J. Benitez and Efrain
Alvarado, JJ. at grand jury-related applications; Ralph
Fabrizio, J. at jury trial and sentencing), rendered January
10, 2014, convicting defendant Allen of manslaughter in the
first degree, and sentencing him to a term of 25 years,
reversed, on the law, and the matter remanded for a new
trial. Judgment (same court and Justices), rendered January
17, 2014, convicting defendant Burgan of manslaughter in the
first degree, and sentencing him to a term of 20 years,
verdicts were supported by legally sufficient evidence, and
were not against the weight of the evidence (see People v
Danielson, 9 N.Y.3d 342, 348-349 ). Initially, we
find no basis for disturbing the jury's credibility
determinations, and we find that the accomplice corroboration
requirement set forth in CPL 60.22(1) was amply satisfied.
The evidence, viewed in totality, supports the conclusion
that both defendants intentionally aided the commission of
the homicide and shared a community of purpose with the
persons who actually shot the victim (see generally
Penal Law § 20.00; People v Scott, 25 N.Y.3d
1107 ). In addition to evidence about events leading up
to the incident, there was testimony that immediately before
the homicide, there was a conversation among the participants
in which one of the gunmen specifically referred to a plan to
"hit" or "kill" the victim and other
persons who might be accompanying him. The evidence also
demonstrated that Burgan intentionally participated in the
crime by remaining nearby with a drawn, loaded pistol, even
though others did all the firing, and that Allen
intentionally participated by acting as a driver and by
pointing out the victim.
People re-presented, or commenced a re-presentation, of
defendants' cases to the grand jury without first
obtaining leave from the court, in violation of CPL 190.75(3)
(see People v Credle, 17 N.Y.3d 556');">17 N.Y.3d 556');">17 N.Y.3d 556');">17 N.Y.3d 556  ;
People v Wilkins, 68 N.Y.2d 269, 274-276 ).
Burgan, the defect was cured when, although the
re-presentation was in progress, the People sought and
obtained leave, at a time when the safeguards of CPL
190.75(3) could still be implemented, and Burgan was not
prejudiced (see Wilkins at 277).
circumstances are different as to Allen, since the presence
of the unlawful murder charge "loomed" over the
trial and influenced the verdict (see People v Mayo,
48 N.Y.2d 245');">48 N.Y.2d 245, 251 ). We accordingly reverse
Allen's conviction and remand for a new trial on the
murder charge lacked jurisdictional legitimacy (see
People v McCoy, 109 A.D.3d 708');">109 A.D.3d 708');">109 A.D.3d 708');">109 A.D.3d 708 [1st Dept 2013]),
violating Allen's constitutional right to be tried for a
felony only upon a valid indictment (see People v
Hansen, 95 N.Y.2d 227, 231 ). While the trial for
murder did not violate double jeopardy, it cannot be doubted
that the presence of the charge "impugn[ed] the very
integrity of the criminal proceeding" (Mayo, 48
N.Y.2d at 252). There is nothing to suggest that
Mayo is limited to double jeopardy cases in the
manner suggested by the dissent; indeed, the Mayo
court recognized that errors of "constitutional
magnitude... are so fundamental that their commission serves
to invalidate the entire trial, " and are not
susceptible to a traditional spillover analysis, which has
its "most convincing application in the area of trial
errors concerning the admissibility of evidence"
(id. at 252).
dissent maintains that the right to an indictment by a grand
jury is not a right "so basic to a fair trial that their
infraction can never be treated as harmless error"
(internal quotation marks omitted). However, the New York
State constitution holds that no person shall be held to
answer for an infamous crime unless upon indictment of the
grand jury (NY Const, art 1, § 6), and the right to
indictment by grand jury has been recognized "as not
merely a personal privilege of the defendant but a public
fundamental right which is the basis of jurisdiction to try
and punish an individual" (People v Boston, 75
N.Y.2d 585, 587  [internal quotation marks omitted]).
defendant Allen was ultimately acquitted of the murder
charge, the charge's presence loomed over the trial, and
in some way influenced the verdict. Rather than continuing to
deliberate concerning Allen's innocence - including
evidence suggesting that he was surprised by the shooting,
and may have intended that the victim receive no more than a
"clipping" - the jury may have concluded that it
had sufficiently grappled with the proof by acquitting him of
the most serious charge.
Mayo, the Court held that a retrial was necessary
even though the unlawful charge had been dismissed prior to
the jury retiring to deliberate. Allen's jury was allowed
to deliberate on the illegal charge, increasing the
likelihood that its presence influenced the verdict and