People v. Davis

*636OPINION OF THE COURT

Pigott, J.

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 Payola 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’ motions to dismiss the indictment on the ground that the People should have obtained court authorization pursuant to CPL 190.75 (3) before re-presenting 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 *637the second degree. Davis and McIntosh brought separate appeals, claiming that the People should have obtained court authorization pursuant to CPL 190.75 (3) before re-presenting 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 resubmit the charges to another grand jury, holding that the People’s prevote 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 (73 AD3d 653 [2010]). A Justice of the Appellate Division granted the People leave to appeal in Davis (2010 NY Slip Op 71696[U] [2010]), and a Judge of this Court granted the People leave to appeal in McIntosh (15 NY3d 807 [2010]), 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 re-presented 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] [emphasis added], citing Wilkins, 68 NY2d 269, 273 [1986], 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 prevote withdrawal of charges from *638the 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 resubmission. 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” (id. at 274, 275).

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, 68 NY2d at 275), and maintaining the independence of the grand jury (see Montanez, 90 NY2d at 694).

III.

In Davis, the order of the Appellate Division should be reversed, because the People had instructed the first grand jury that only McIntosh was the target of the proceedings. Although Walker testified before the first grand jury that Davis also participated in the attack, the introduction of such testimony was unavoidable given the fact that this was a joint attack. At that point, Davis had not been arrested. Moreover, the People advised the grand jury that it was to consider the evidence only against McIntosh. Since the People never sought an indictment from the first grand jury against Davis, Wilkins is irrelevant since there were no charges against Davis to be withdrawn (see People v Santmyer, 255 AD2d 871, 871 [4th Dept 1998]).

IV

With respect to McIntosh, it is undisputed that she was a target of both grand jury presentations. In this case, however, the Appellate Division erred in focusing on the legal sufficiency of the People’s case against McIntosh at the time they withdrew *639it rather than on “the extent to which the Grand Jury considered the evidence and the charge” (Wilkins, 68 NY2d at 274). Here, it cannot be said that the proceedings before the first grand jury had progressed to the point where it had fully considered the evidence and the charges against McIntosh. It is clear from the record that the People intended to present additional witnesses, stating before presenting any evidence that it would be a continuing case. Moreover, 10 days later, at the end of the grand jury’s term, there was at least one witness the People intended to present who was unavailable to testify. There is no evidence in this record that would raise the primary concern of this Court’s holding in Wilkins, namely that the People withdrew their case in order to present it to a more compliant grand jury. The People’s withdrawal of the charges under these circumstances does not constitute a dismissal under Wilkins, and the People were not therefore required to obtain court authorization before re-presenting the case to another grand jury.

Accordingly, the orders of the Appellate Division in both Davis and McIntosh should be reversed, and the cases remitted to the Appellate Division for consideration of the facts and issues raised but not determined on the appeals to that court.