
    The People of the State of New York, Appellant, v Mark Cade, Respondent.
    Argued September 12, 1989;
    decided October 24, 1989
    
      POINTS OF COUNSEL
    
      John J. Santucci, District Attorney, Queens County (Andrew Zwerling of counsel), for appellant.
    I. The indictment was erroneously dismissed. (People v Rodriguez, 11 NY2d 279; Matter of De Canzio v Kennedy, 67 AD2d 111; People v Potter, 50 AD2d 410; People v Nicholas, 35 AD2d 18; Matter of Grand Jury of County of Nassau, 129 Misc 2d 770; People v Williams, 129 Misc 2d 501; People v Westbrook, 79 Misc 2d 902; People v Lenoci, 13 Misc 2d 789; People v Benson, 208 Misc 138; People v Wilkins, 68 NY2d 269.) II. The court below lacked jurisdiction to reach the quorum issue; in any event the quorum requirement of CPL article 190 was satisfied in the instant case. (People v Reed, 276 NY 5; People v De Jesus, 54 NY2d 447; People v Gersewitz, 294 NY 163, 326 US 687; People v Goodfriend, 64 NY2d 695; People v Colon, 65 NY2d 888; People v Vallone, 140 AD2d 729; People v Heizman, 127 AD2d 609, 69 NY2d 950; People v Gibbs, 21 AD2d 980; People v Collier, 72 NY2d 298; People v Infante, 124 AD2d 86.)
    
      Kenneth A. Reiver for respondent.
    I. The indictment was properly dismissed by the court below. (People v Wilkins, 68 NY2d 269; People v Di Falco, 44 NY2d 482; Matter of Reports of Grand Jury of County of Montgomery, 108 AD2d 482; Matter of Grand Jury of Supreme Ct. of Rensselaer County, 98 AD2d 284; People v Herrmans, 69 Misc 303; People v Oishei, 20 Misc 163; People v Blake, 121 App Div 613.) II. Actual prejudice to defendant is not required to render a Grand Jury proceeding defective. (People v De Ruggiero, 96 Misc 2d 458; People v Di Falco, 44 NY2d 482; People v Hargrove, 80 Misc 2d 317.) III. Absent evidence that a proper quorum was present an indictment is deemed to be fatally flawed.
    
      Elizabeth Holtzman, District Attorney, Kings County (Ann Bordley and Barbara D. Underwood of counsel), amicus curiae pro se.
    
    I. The decision of the court below is wrong as a matter of law and has needlessly caused the dismissal of indictments. (Matter of Holtzman v Goldman, 71 NY2d 564; People v Douglass, 60 NY2d 194; People v Wilkins, 68 NY2d 269, 996; People v Williams, 73 NY2d 84; Dawson v People, 25 NY 399; People v Hulett, 53 Misc 2d 1034; People v Thompson, 116 AD2d 377; People v Baez, 118 AD2d 863; People v Grillo, 15 AD2d 502, 11 NY2d 841; People v Ansare, 96 AD2d 96.) II. The Cade rule should not apply retroactively. (Daniel v Louisiana, 420 US 31; Williams v United States, 401 US 646; Desist v United States, 394 US 244; Fuller v Alaska, 393 US 80; 
      DeStefano v Woods, 392 US 631; Stovall v Denno, 388 US 293; Johnson v New Jersey, 384 US 719; People v Buia, 34 NY2d 529; People v Bush, 33 NY2d 921, 34 NY2d 537, 419 US 848; People v Feinlowitz, 29 NY2d 176, 695, 749, 405 US 963.)
    
      Abigail Everett, Philip L. Weinstein and Arnold S. Cohen for The Legal Aid Society, amicus curiae.
    
    Once the Grand Jury votes to indict, the prosecutor may not ask it to void its vote and deliberate anew. (People v Williams, 73 NY2d 84; Matter of Additional Jan. 1979 Grand Jury v Doe, 50 NY2d 14; People v Di Falco, 44 NY2d 482; People v Wilkins, 68 NY2d 269; Matter of Grand Jury of Supreme Ct. of Rensselaer County, 98 AD2d 284; People v Settles, 46 NY2d 154; People v Calbud, Inc., 49 NY2d 389; People v Marine, 142 Misc 2d 449; People ex rel. Suddith v Sheriff of Ulster County, 93 AD2d 954; People v Avant, 33 NY2d 265.)
   OPINION OF THE COURT

Simons, J.

In this matter the Grand Jury voted a true bill charging defendant with murder, second degree, and criminal possession of a weapon, second degree, and then, at the prosecutor’s request, vacated the true bill to hear additional evidence. After hearing the additional evidence it voted a new true bill and an indictment was filed charging defendant with the same two crimes. Defendant contends that the second submission was improper because not authorized by the court pursuant to CPL 190.75, and that the indictment which followed it is void. The trial court agreed and dismissed the indictment with leave to the District Attorney to resubmit the charges to another Grand Jury and the Appellate Division affirmed. A Judge of this court granted the People leave to appeal and we now reverse.

The legal question arises from these facts.

On April 1 and April 3, 1987, a Queens County Grand Jury heard evidence of the July 7, 1985 murder of Darrell Richardson and defendant’s responsibility for it. At the conclusion of the April 3 presentation the Assistant District Attorney instructed the Grand Jury on the law and it voted a true bill charging defendant with murder, second degree, and criminal possession of a weapon, second degree. The Grand Jury did not immediately file the indictment with the court, however, and on April 9, 1987, at the request of the Assistant District Attorney, it vacated its earlier vote and considered new testimony that the shotgun which had been used to kill Richardson, and which had been recovered from defendant on July 10, had been in his exclusive possession on the day of the murder. After the Grand Jury had heard this evidence, the Assistant District Attorney instructed it again and the Grand Jury voted a second true bill containing the same two counts. Defendant maintains that this indictment, subsequently filed with the court, is void.

At common law there was no limit to the power of the prosecutor to resubmit charges to the same or different Grand Juries (see, People v Wilkins, 68 NY2d 269, 273; People ex rel. Flinn v Barr, 259 NY 104; People v Rosenthal, 197 NY 394, 401, affd 226 US 260). The only protection from repeated prosecution available to an individual was the constitutional protection against double jeopardy and that could not be invoked until the time of trial (see, People v Rosenthal, supra). The breadth of this power invited abuse by prosecutors who could resubmit to a more compliant Grand Jury charges previously dismissed by another (People v Wilkins, supra; see also, People ex rel. Flinn v Barr, supra, at 108 [quoting from the notes to the predecessor of the present section contained in the draft Code of Criminal Procedure]). Accordingly, the Legislature, over the years, enacted several provisions in the Criminal Procedure Law, and its predecessors, to check such abuses. We are concerned here with CPL 190.60 (4) and 190.75 (1), (3) (derived in part from former Code of Criminal Procedure §§269, 270). Although the statutes neither prohibit nor authorize the procedure followed here explicitly, defendant maintains that the District Attorney’s powers are limited by them.

By their terms, the sections apply only to prior "dismissals” and require judicial permission to resubmit charges when the first Grand Jury hearing the evidence has rejected it as insufficient (CPL 190.75 [1], [3]; see, People v Wilkins, 68 NY2d 269, 273, supra; Bellacosa Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.75, at 342). Thus, we consistently held in the past, when applying the Code of Criminal Procedure, that a court order was not necessary for resubmission unless there was an initial refusal by a Grand Jury to indict or a prior court dismissal of the indictment (People v Rodriguez, 11 NY2d 279, 286; People ex rel. Flinn v Barr, supra; People v Rosenthal, supra; see, Code Crim Pro § 292-a). Nothing in the Criminal Procedure Law was intended to change that rule; under the present statute a superseding indictment may also be obtained without court authorization (Matter of De Canzio v Kennedy, 67 AD2d 111, 119-120; and see, CPL 200.80). If the Grand Jury has voted favorably on the charges, the District Attorney is at liberty to resubmit the matter to the same Grand Jury, without the necessity of recalling witnesses who have previously testified and rehearsing the evidence (see, People v Salerno, 3 NY2d 175, 177; People v Puig, 85 Misc 2d 228; People v Falasco, 121 Misc 538), or to an entirely new Grand Jury without court approval and obtain a superseding indictment. As long as the action does not impair the integrity of the Grand Jury proceedings or risk prejudice to the defendant (CPL 210.35 [5]), and we perceive no danger of either in this case, the indictment against defendant may stand.

The action of this Grand Jury was not unlike the procedure followed in People v Young (138 AD2d 764) and People v Skrine (125 AD2d 507). In those cases the Appellate Division approved the Grand Jury’s action of reopening the proceedings after a true bill had been voted, notwithstanding the lack of any statutory authority for doing so, upon applications by a defendant seeking to exercise his statutory right to appear. A similar ruling is appropriate under the circumstances presented in this case.

The trial court and the Appellate Division believed dismissal was mandated by our recent decision in People v Wilkins (68 NY2d 269, supra). In Wilkins we held that when the prosecutor unilaterally withdrew a case from the grand jurors before they had an opportunity to vote, he could not resubmit the matter without court authorization. Noting that the purpose of CPL 190.75 (3) was to check the practice of resubmitting a matter to a new Grand Jury once the evidence had been rejected, we concluded that under the circumstances of that case the Grand Jury’s failure to vote a true bill was a rejection of the People’s evidence and therefore the equivalent of a dismissal. That being so, court approval was required before the District Attorney could submit the matter to another Grand Jury. Notwithstanding the good faith of the District Attorney in Wilkins, approval of his conduct could have lead to precisely the abuse the Legislature sought to avoid by CPL 190.75 (3) and its predecessors: the prosecutor, apprehensive of dismissal, could have withdrawn the case after the Grand Jury had considered the evidence but before it had voted and resubmitted the charges to another Grand Jury, and he could have done so repeatedly until a favorable result was obtained (see, id,., at 275).

The circumstances of this case differ significantly. On April 3 the Grand Jury voted to indict. Once it had accepted the People’s evidence as sufficient to support the charges, the District Attorney had no need to forum shop for a more compliant Grand Jury. The potential for undermining the statute no longer existed and judicial intervention wets no longer required.

Defendant also contends that because CPL 190.65 (3) provides that upon voting an indictment the Grand Jury "must” file it with the court, the failure to file the April 3 indictment immediately was a jurisdictional defect. The provision is only directory, however, and imposes no time limits on filing (see, Dawson v People, 25 NY 399, 405-406). Its requirements were met when the indictment voted April 9 encompassing all the proceedings on the charges was filed with the court.

Nor is there any reason to interpret either the failure to file the original indictment or its vacatur as a dismissal of the charges, as defendant and the amicus curiae brief of Legal Aid Society urge. The Grand Jury voted to vacate and reopen, without filing the indictment, so that it could receive additional evidence supporting charges it had already approved. Its actions cannot be treated as a dismissal because they were not the equivalent of a rejection of the People’s evidence. Quite the contrary, they signify acceptance, not rejection. Manifestly, the Grand Jury found the evidence sufficient on April 3 and again, after supplementation, on April 9.

As a practical matter, the District Attorney could have accomplished precisely the same result here by obtaining a superseding indictment without court approval; he needed only to file the original indictment endorsed by the Grand Jury and then re-present the matter to the same or another Grand Jury. Indeed, the prosecutor could have obtained a superseding indictment even if the existing one was subject to a pending motion to dismiss and the motion was subsequently granted by the court (see, People v Leyra, 1 NY2d 199, 202-203).

In view of these available alternatives, and the results to be expected from pursuing them, the procedure urged by defendant would only consume limited prosecutorial and judicial resources needlessly. The prosecutor, having already presented enough evidence to convince the Grand Jury to indict and choosing only to supplement the proof, had little reason to obtain a superseding indictment and there was nothing improper in his failure to do so. Unless the proceedings have been flawed or the District Attorney’s actions have risked some prejudice on defendant within the meaning of CPL 210.35 (5), and we see none, he was free to act as he did.

In conclusion, several points raised by the dissenters must be addressed. They find only two possible explanations for the procedure used here: (1) that the prosecutor asked the Grand Jury to void the true bill and resubmitted out of fear the Grand Jury would expire and new Grand Jury would look less favorably on the evidence or (2) the prosecutor did not wish to expose the case to a motion to dismiss for legal insufficiency (dissenting mem, at 421). There is nothing in the record, however, to suggest that the prosecutor here acted as he did out of any conviction that the evidence before the Grand Jury was inadequate or that dismissal was likely. Moreover, there are other reasons why a prosecutor or a Grand Jury would choose to reopen the evidence. The prosecutor might, for example, supplement the evidence to bring additional or higher charges, to introduce exculpatory material (see, People v Valles, 62 NY2d 36, 38-39), or to allow a defendant the opportunity to testify (see, CPL 190.50; People v Young, supra; People v Skrine, supra). Although the dissenters presumably would not accept as legitimate these reasons for following the procedure used here, we find no fault with the actions of the Grand Jury and no reason to invalidate the indictment in the absence of grounds for dismissal under CPL 210.35 (5).

The dissenters also contend that the procedure evades the statutory requirements of CPL 200.80 concerning superseding indictments and the holding provisions of CPL 180.80. Contrary to the statement in the dissent, CPL 200.80 does not authorize, nor do we concede that it authorizes, re-presentment of a case only by means of a superseding indictment. The section is silent on the procedure used here (see, dissenting mem, at 419). Thus, the dissent’s observation that there was an authorized solution to the problem, derived from our opinion in People v Wilkins (68 NY2d 269, supra), is based on an incorrect premise.

Nor is there anything in the record to support the dissenters’ contention that, in the absence of filing, the procedure was used to evade the requirements of CPL 180.80. There was nothing to be gained here by obtaining a superseding indictment and, inasmuch as the statutes did not require the prosecutor to do so, the requirement of filing under the circumstances, was a formality which would not more adequately protect the defendant’s rights.

Finally, it should be emphasized that the statutory limitation upon resubmitting a case only once applies to cases in which the Grand Jury or court has rejected the People’s evidence. The purpose of the limitation is to prevent harassment of a potential defendant. If the Grand Jury has not rejected the People’s evidence but rather accepted it, the reason to invoke the limitation no longer exists.

In conclusion, we are obliged to comment on observations made by the trial court and the Appellate Division concerning quorum requirements (see generally, CPL 190.25 [1]). Defendant did not question the quorum in his omnibus motion and the parties did not address that subject in the trial court. Moreover, the issue was not raised in the Appellate Division and that court should not have considered it on the People’s appeal (see, People v Goodfriend, 64 NY2d 695).

Accordingly, the order of the Appellate Division should be reversed and the indictment reinstated.

Kaye, Alexander and Titone, JJ.

(dissenting). The Criminal Procedure Law enumerates only five permissible dispositions for cases presented to a Grand Jury: the Grand Jury may indict, direct the filing of a prosecutor’s information, request a removal to Family Court, dismiss the charges, or submit a Grand Jury report (CPL 190.60 [l]-[5]). By adding a sixth — which is unauthorized by the Legislature — the majority allows prosecutors to evade the clear directives of the governing statutes and undermines the integrity of the Grand Jury process. We cannot accede to this judicial enlargement of prosecutorial power, and therefore dissent.

At the outset, it is important to emphasize what is conspicuously absent from the majority’s opinion but conceded by the People. The procedure employed here is not one that is used rarely, only in an isolated instance. To the contrary, this unauthorized procedure has been used in countless cases and, given the court’s imprimatur, will doubtless now become even more routine. In People v Wilkins (68 NY2d 269), despite the lack of any bad faith on the part of the prosecutor, we refused to countenance use of an unauthorized procedure because of the effect that permitting the practice might have on the prosecutor’s use of the Grand Jury in future cases. The same result should obtain here.

The majority relies on two points for its approval of the prosecutor’s practice: first, the identical result can be accomplished simply by filing a superseding indictment, and second, the Grand Jury initially voted a true bill. These two factors purportedly demonstrate that no potential for abuse of the indictment process inheres in the practice. We disagree.

That the prosecutor could readily have obtained a superseding indictment without court approval or resubmission to a new Grand Jury does not justify an unauthorized procedure, and indeed militates even more strongly against it. As the majority recognizes, the Criminal Procedure Law authorizes the prosecution to re-present a case to the Grand Jury, without court approval, only by obtaining a superseding indictment (see, CPL 200.80), which requires that the prosecutor "file the original indictment endorsed by the Grand Jury and then re-present the matter to the same or another Grand Jury.” (Majority opn, at 416.) That the Legislature provided the prosecutor a lawful way of accomplishing the same end is all the more reason why strict compliance with the statutory scheme should be required. As we concluded in People v Wilkins (68 NY2d 269, 276, supra), if there is an authorized solution for the prosecutor’s dilemma, the prosecutor, as legal advisor to the Grand Jury, should be required to follow it.

Moreover, the filing of the original indictment triggers the defendant’s right to judicial review of the indictment’s sufficiency, a protection unnecessarily discounted by the majority. Because a court has discretion to deny a prosecutor’s request to resubmit a case to the Grand Jury (CPL 190.75 [3]), it is by no means guaranteed that in any given case the court will authorize resubmission if the indictment is dismissed for legal insufficiency.

In cases such as this one where the new evidence allegedly merely lends additional support to the counts on which the Grand Jury has already voted to indict, the only practical explanation for "voiding” the existing indictment is that the prosecutor has doubts, well founded or otherwise, about the ability of the original evidence to survive a motion to dismiss for legal insufficiency. Rather than risking dismissal and an unfavorable outcome on a request for judicial permission to resubmit (see, CPL 190.75 [3]), a prosecutor might well prefer to keep control of the process by treating the prior Grand Jury action as though it had never occurred and obtaining a second indictment fortified by new evidence.

Furthermore, a court may grant one resubmission only (CPL 190.75 [3]). Unapproved withdrawals before filing effectively emasculate this statutory limitation.

What is perhaps most disturbing about the practice of "voiding” is the People’s admission that its primary purpose is to avoid the consequences of the time constraints imposed by CPL 180.80.

CPL 180.80 requires the release of a defendant who has been held in custody on a felony complaint for more than 120 hours (or 144 hours if the detention period includes a Saturday, Sunday or legal holiday), unless one of several conditions are met. Included among these conditions is the filing of an indictment or a written certificate that an indictment has been voted before the defendant’s application for release was made (CPL 180.80 [2]).

According to the People’s brief: "One cannot overstate the frequency with which cases throughout this State were reopened by prosecutors after the vote of a true bill and prior to the filing of an indictment. It was (prior to [the Appellate Division decision in this case]) not uncommon for a prosecutor to present a legally sufficient case as to certain charges in order to comply with the time constraints of CPL 180.80, and to reopen the case when previously unavailable information was forthcoming. This was true, for example, in narcotics cases where sales charges based upon police observations were presented and voted upon, while the submission of possession charges were delayed until the receipt of laboratory reports; in multiple sex victim cases in which only one victim was available within the time period delineated by CPL 180.80, and others came forward afterwards; or, in armed robbery cases where the weapon possession charges could not immediately be presented due to the unavailability of ballistic reports.”

This litany of the circumstances in which the challenged practice has been used suggests no legitimate prosecutorial need for resorting to an extra-statutory procedure. While it is true that the CPL 180.80 time constraints may provide good reason to make a premature Grand Jury presentation in particular cases, that circumstance does not explain why existing, authorized procedures are inadequate to cure the resulting problems.

In cases where the weapon or drug possession charges associated with a criminal incident must await the completion of a technician’s report, the statute allows the People to obtain a superseding indictment without prior court approval (CPL 200.80). In cases where additional victims or evidence are expected to come to light after the CPL 180.80 deadline has passed, the statute allows the People either to delay the initial presentment and oppose the release of the defendant on the basis of asserted "good cause” (see, CPL 180.80 [3]) or, again, make an initial Grand Jury presentation and then seek a superseding indictment. Finally, where, as here, there exists new and useful evidence pertaining to the original counts voted by the Grand Jury, the People may — consistent with the statute — either supersede or leave in place the existing indictment, which is presumably supported by legally sufficient evidence, and use the new evidence to enhance their presentation at trial.

The availability of these options strongly suggests two explanations for a prosecutor’s resort to a practice not specified by statute. If there is a chance that the term of the original Grand Jury — the one that has already acted favorably — may expire before filing is complete, the prosecutor may prefer not to risk resubmitting the case to a different Grand Jury, which could well take a different view of the facts. Or the prosecutor simply may not wish to expose the case to a motion to dismiss for legal insufficiency. Both reasons are indicative of an effort on the part of the People to chart their own course so as to avoid the risk of the defendant’s early release under CPL 180.80 on the one hand while, at the same time, avoiding the pitfalls of a hasty Grand Jury presentation. Plainly, this course was not contemplated by the Legislature when it adopted articles 180 and 190 of the Criminal Procedure Law.

As the People readily admit, the Grand Jury indictment process is being used in these cases not for its intended purpose of subjecting the available evidence to independent review, but rather for the purpose of obtaining a Grand Jury vote so that a formal certificate may be filed and the technical requirements of CPL 180.80 deemed satisfied. Furthermore, the People’s rush to obtain a Grand Jury indictment before the CPL 180.80 deadline expires is, in many instances, motivated by their desire to avoid exposing their case to an adversarial preliminary hearing (see, CPL 180.60, 180.80), in which the defendant has an opportunity both to preview their evidence and to cross-examine their witnesses (see, People v Hodge, 53 NY2d 313, 318-319). While the People’s strategic preference for the Grand Jury is understandable, we do not believe that this court should sanction an extra-statutory procedure that is calculated to advance it. The practice of routinely making Grand Jury presentations to satisfy CPL 180.80, with the idea that shortcomings or defects can be cured within the relatively risk-free environment of the same Grand Jury, distorts the legislatively specified system for preliminary review and, in that sense, impairs the integrity of the Grand Jury.

Accordingly, we would hold that when a prosecutor successfully asks the Grand Jury to "void” its prior vote to indict, the resulting Grand Jury action is, as in Wilkins, the functional equivalent of a dismissal. We would therefore affirm the Appellate Division order.

Chief Judge Wachtler and Judges Hancock, Jr., and Bellacosa concur with Judge Simons; Judges Kaye, Alexander and Titone dissent and vote to affirm in a memorandum.

Order reversed, etc. 
      
       CPL 190.75 (1), (3) provides: "When a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury. If in such case the charge is again dismissed, it may not again be submitted to a grand jury.”
     
      
       Reopening the proceedings to permit a defendant to exercise his or her statutory right to appear before the Grand Jury up until filing of an indictment (CPL 190.50 [5] [a]) involves quite different considerations, and the majority’s reliance on Appellate Division decisions upholding such action (see, e.g., People v Young, 138 AD2d 764; majority opn, at 415) is entirely misplaced.
     