(concurring in Davis and dissenting in McIntosh). Although I join in the majority’s decision to reverse in Davis upon the very narrow ground that Davis was expressly not a target of the first presentation, I part company with the majority as to its disposition in McIntosh, which I believe rests upon a misreading of People v Wilkins (68 NY2d 269 [1986]).
It is not debatable that under Wilkins the crucial consideration in determining whether judicial permission for re-presentation is required pursuant to CPL 190.75 (3) is “the extent to which the Grand Jury considered the evidence and the charge” (68 NY2d at 274). The majority, after duly quoting this formulation, directly concludes that permission for re-presentation was not required with respect to the charges against McIntosh because “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 charges against [her]” (majority op at 639 [emphasis added]). Although it is clear that when there is full consideration of the charges, a prosecutor’s withdrawal of a matter will be deemed a dismissal triggering the application of CPL 190.75 (3) (see People v Credle, 17 NY3d 556 *640[2011] [decided herewith]), nowhere in Wilkins is full consideration of the evidence and charge made a necessary condition of judicial supervision of a prosecutor’s decision to resubmit charges to a second grand jury. To the contrary, the Wilkins Court observed that “the presentation need not be complete for consideration equivalent to a dismissal to occur” (68 NY2d at 274) and specifically noted that it had been “clearly held” in Matter of McGinley v Hynes (75 AD2d 897 [2d Dept 1980], revd on other grounds 51 NY2d 116 [1980], cert denied 450 US 918 [1981]) that “the Grand Jury had heard and considered enough to render the withdrawal of the case equivalent to a dismissal, even though the prosecutor conceded that he had not finished presenting his case and certainly could not at that point have formally instructed the Grand Jury on the law” (Wilkins, 68 NY2d at 274-275 [emphasis added]). While we did observe in Wilkins that the presentation there at issue had progressed further than had the presentation in McGinley, and that it was, in contrast to the presentation in McGinley, complete “as far as the prosecution was concerned” (id. at 274), we did not thereby hold that the effect of a withdrawal should turn upon whether the presenting prosecutor was of the view that he or she had completed presenting a matter. Our observation merely served to show that the presentation in Wilkins had exceeded by far the benchmark established by McGinley, where the prosecutor “concededly” had not finished his presentation.
There is no question that where a grand jury has not considered the evidence and charge against a particular target at all, the matter’s withdrawal may not be deemed a dismissal as against that individual (People v Gelman, 93 NY2d 314, 319 [1999]). What is less clear, and what neither Wilkins, at one end of the spectrum, nor Gelman at the opposite extreme are particularly helpful in ascertaining, is precisely when the prosecutor has crossed the rubicon — the point at which the prosecutor has placed before a grand jury sufficient evidence of a targeted individual’s commission of a crime that the prosecutor’s act of wresting the matter back from the grand jury should be considered a dismissal within the meaning of CPL 190.75 (3). The Appellate Division in Davis (see 72 AD3d 53, 60 [2010]) and at least one commentator (see Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.75, at 141), have understood the decisive inquiry to be whether there was at the time of the withdrawal sufficient evidence of the submitted offenses before the grand jury to support an indictment against a particular target. While that test is imperfect for denying the *641inference in situations where it might well be warranted — since the withdrawal of a count that would likely have been dismissed had it been voted would seem a natural candidate for a Wilkins dismissal — the sufficiency test has the virtue of clarity and would avoid the prospect of dismissal in situations where the prosecutor simply had not been able to present a prima facie case before the first grand jury. Certainly it is a test preferable to one in which the prosecutor’s subjective satisfaction with the fullness of his or her presentation is the measure. In any case, once a prosecutor has presented to a particular grand jury evidence sufficient to justify the indictment of a particular individual for a specified offense, it would seem entirely fair and consistent with the governing statutory design that there should arise a presumption that the matter will be disposed of by action of that first grand jury, which is to say that the matter will be concluded by that grand jury in one of the five ways authorized by CPL 190.60. In those hypothetically rare situations in which this does not occur and the first grand jury’s consideration of a matter is terminated not by its own statutorily authorized action but by the unilateral action of the prosecutor, the concerns underlying CPL 190.75 (3) are fully implicated and court supervision is necessary to assure that the action of the prosecutor has not impermissibly stripped the grand jury of its independent prerogative to judge whether a matter should be the subject of an indictment.
At the time of the withdrawal of the McIntosh matter, the prosecutor had presented considerable evidence implicating McIntosh in the charged offenses. While the presentation may not have been complete from the prosecutor’s perspective, that, as noted, cannot under Wilkins be dispositive of whether the matter’s withdrawal should be viewed as a dismissal triggering the applicability of CPL 190.75 (3). There is no question that the prosecutor had elected to commit the matter to the grand jury and that in pursuance of that election substantial evidence of McIntosh’s participation in the alleged wrongdoing was presented to and considered by the grand jury. Indeed, the Appellate Division found that the People had made “a full presentation of a legally sufficient case” against their named target (72 AD3d at 63). Having progressed so far, the prosecutor was not, under Wilkins, free to withdraw the case and re-present it to a second panel without leave of the court. It may be that the withdrawal was prompted only by the circumstance that the grand jury’s term was drawing to a close and there was still *642evidence that the prosecutor wished to present. The prosecutor, however, did not ask the grand jury to extend its term, as she could have (see CPL 190.15 [1]) and, in any event, the issue in judging whether a dismissal should be inferred is not the prosecutor’s good faith or lack of it — an issue that might be highly pertinent to a subsequent decision as to whether re-presentment should be allowed — but rather whether the presentation had progressed to the point that the grand jury should in the ordinary discharge of its responsibilities and function have disposed of the charges proposed as to the target in one of the statutorily authorized ways. Manifestly, that point had been reached and, that being the case, a judge, and not the prosecutor, should have decided in the first instance whether the circumstances of the withdrawal justified an exception to the policy against serial submissions of the same counts that CPL 190.75 (3) exists to enforce.
If an inference of dismissal under Wilkins could be avoided simply by a prosecutorial assertion of dissatisfaction with the fullness of the first presentation — an assertion undoubtedly easily made in very many cases given the fairly undemanding standard of evidentiary sufficiency applicable where indictments are concerned and the consequently tactically thin grand jury presentations often made — Wilkins would be effectively undone. Consistent with its limiting purpose (see People v Credle, supra), all that Wilkins purports to require as a condition of a “dismissal” within the meaning of CPL 190.75 (3) is that the grand jury “ ‘knew about and considered the charge’ ” (68 NY2d at 274, quoting People v Nelson, 298 NY 272, 276 [1948]). Plainly, those threshold criteria were met during the initial presentation against defendant McIntosh.
Judges Ciparick, Graffeo, Read, Smith and Jones concur with Judge Pigott; Chief Judge Lippman in a separate concurring opinion in which Judges Ciparick and Jones concur.
In People v Davis: Order reversed, etc.
Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents in a separate opinion in which Judges Ciparick and Jones concur.
In People v McIntosh: Order reversed, etc.