        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

131
KA 13-00330
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

LOUIS GRIMES, DEFENDANT-RESPONDENT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Onondaga County Court (Donald E.
Todd, A.J.), dated November 29, 2012. The order, insofar as appealed
from, granted that part of the motion of defendant seeking to dismiss
that count of the indictment charging him with assault in the first
degree.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law, that part of the omnibus motion
seeking to dismiss the count of assault in the first degree is denied,
that count of the indictment is reinstated, and the matter is remitted
to Onondaga County Court for further proceedings on the indictment.

     Memorandum: The People appeal from an order granting that part
of defendant’s omnibus motion seeking to dismiss the count of the
indictment charging defendant with assault in the first degree (Penal
Law § 120.10 [1]). The indictment also contains a second count,
charging defendant with assault in the second degree (§ 120.05 [2]).
In dismissing the count charging defendant with assault in the first
degree, County Court held that the People improperly reopened the
grand jury proceedings after a true bill had been voted on the charge
of assault in the second degree, which had not been filed as an
indictment, in order to supplement the evidence and bring the higher
charge of assault in the first degree. The court concluded that,
pursuant to CPL 190.25 (1) and People v Cade (74 NY2d 410), the People
were required to obtain the vote of at least 12 members of the grand
jury to vacate the grand jury’s earlier vote and reopen the
proceedings. We agree with the People that the court erred in
dismissing the count charging defendant with assault in the first
degree.

     Dismissal of an indictment under CPL 210.35 (5) based on a
defective grand jury proceeding “ ‘is limited to instances of
                                 -2-                           131
                                                         KA 13-00330

prosecutorial misconduct, fraudulent conduct or errors which
potentially prejudice the ultimate decision reached by the [g]rand
[j]ury’ ” (People v Sheltray, 244 AD2d 854, 855, lv denied 91 NY2d
897; see People v Huston, 88 NY2d 400, 409; People v Shol, 100 AD3d
1461, 1462, lv denied 20 NY3d 1103). Pursuant to CPL 190.25 (1),
“[p]roceedings of a grand jury are not valid unless [16] of its
members are present. The finding of an indictment . . . and every
other affirmative official action or decision requires the concurrence
of at least [12] members thereof.”

     Here, as noted, the court held that the grand jury proceedings
were defective because the People, without seeking a formal vote of at
least 12 members of the grand jury, submitted additional evidence
after the grand jury had voted the first true bill, but before an
indictment had been filed. Contrary to the court’s conclusion, Cade
does not hold that a grand jury must vote to vacate a prior true bill
that has not been filed as an indictment in order to reopen the
proceedings and introduce additional evidence in support of proposed
charges that were not previously considered by the grand jury (see
generally People v Frasier, 105 AD3d 1079, 1080; People v Lyons, 40
AD3d 1121, 1122, lv denied 9 NY3d 878; People v Dorsey, 166 AD2d 180,
181, lv denied 76 NY2d 1020, reconsideration denied 77 NY2d 877).
Indeed, in Cade, the Court of Appeals noted that there are reasons,
other than a prosecutor’s belief that the evidence before the grand
jury was inadequate or that dismissal was likely, “why a prosecutor or
a [g]rand [j]ury would choose to reopen the evidence. The prosecutor
might, for example, supplement the evidence to bring additional or
higher charges” (74 NY2d at 417 [emphasis added]). Moreover, unlike
the procedure that was in any event approved in Cade, here the
prosecutor never requested that the grand jury reconsider the lower
charge of assault in the second degree in light of the additional
evidence (cf. id. at 413-414). Thus, inasmuch as there was no second
presentment of that charge, the grand jury was not required to vacate
its prior vote. We therefore conclude that the integrity of the grand
jury was not impaired (see Shol, 100 AD3d at 1462). In view of our
conclusion, we do not address the issue whether defendant was
prejudiced by the procedure employed here.




Entered:   March 21, 2014                      Frances E. Cafarell
                                               Clerk of the Court
