(dissenting.) The issue raised on this appeal is whether a prosecutor may, without judicial leave, present additional evidence and resubmit a case to a grand jury after the grand jury has failed to indict on the evidence first presented to it. As will be discussed fully below, a grand jury’s failure to indict a person on the evidence presented to it was held a dismissal of the charge against the person at common law and has been defined as a dismissal of the charge by statute since the first comprehensive criminal procedure law of this state was enacted more than 100 years ago. Nevertheless, the Bronx *57County District Attorney appeals from the dismissal of an indictment that was obtained after the prosecutor presented additional evidence and resubmitted the case, without leave of court, to the grand jury that had failed to indict on the evidence first presented. I would affirm.
Until People v Foster (279 AD2d 317 [2001]) was decided (accord People v Medina, 283 AD2d 250 [2001]), it had long been unquestioned at bench and bar that a failure to indict constitutes dismissal, as is evident from a brief survey of relevant cases (see e.g. People v Tomaino, 248 AD2d 944, 944, 945 [1998] [the grand jury “refused in September 1991 to indict defendant for murder”; the Court subsequently referred to the murder charge as having been “examined by a Grand Jury and dismissed”]; People v Franco, 196 AD2d 357, 362 [1994], affd 86 NY2d 493 [1995] [the grand jury’s “failure to vote a true bill on any of the submitted charges was a complete rejection of the People’s evidence”]; People v Dykes, 86 AD2d 191, 192 [1982] [the grand jury “refused to indict”; in an application to the court, the prosecutor referred to “the dismissal” and “the dismissed charges”]; People v Martin, 71 AD2d 928, 928 [1979] [after the grand jury “failed to find a true bill,” the prosecutor moved for leave to resubmit charges pursuant to the statute authorizing resubmission of charges that have been dismissed by a grand jury]; People v Davis, 114 Misc 2d 645, 647 [1982] [“The court finds that this matter was dismissed when the Grand Jury failed to return a true bill on the manslaughter in the first degree charge”]; People v Besser, 207 Misc 692, 693 [1955] [“Th(e) Grand Jury failed to find an indictment and returned to the court a ‘dismissal’ of the charge”]; People v Brinkman, 126 NYS2d 486, 488 n 2 [Queens County Ct 1953] [describing the procedure whereby, after “the grand jury find(s) no cause for indictment,” that finding “becom[es] a record of the dismissal of the charge”]; People v Pack, 179 Misc 316, 322 [1942] [“The question presented in this case is whether the (felony) rule applies to a misdemeanor. Is the Magistrate * * * compelled to dismiss the case because the grand jury declined to find an indictment on the same charge?”]; Matter of Gardiner, 31 Misc 364, 367 [1900] [“if (the grand jury) have legal evidence of the commission of the crime it should find an indictment against (the individual charged) upon which he could be held to answer, and if it have no such evidence, it ought, in fairness, to be silent”]).
In arguing that People v Foster (supra) and People v Medina (supra) should be followed, the majority observes that the doctrine of stare decisis should not be departed from except under *58compelling circumstances (Cenven, Inc. v Bethlehem Steel Corp., 41 NY2d 842, 843 [1977]). It is important to remember, however, that stare decisis is “ 'not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience’ ” (People v Hobson, 39 NY2d 479, 487 [1976], quoting Helvering v Hallock, 309 US 106, 119 [1940] [Frankfurter, J.]). People v Foster (279 AD2d 317 [2001]) announced a radical and unwarranted departure from firmly established precedent inimical to the doctrine of stare decisis and has been followed in one instance only (see People v Medina, supra). I believe that those cases were wrongly decided, and that the ends of justice require they not be followed, and that this Court “should depart from them rather than adhere slavishly to error” (People v Damiano, 87 NY2d 477, 504 [1996] [internal quotation marks and citation omitted]), and that we should reaffirm and announce a return to established procedure, which is “more embracing in its scope, intrinsically sounder, and verified by experience.” (39 NY2d at 487.) As Chief Judge Breitel warned in People v Hobson (supra at 488), “there is potential for jurisprudential scandal in a court which decides one way one day and another way the next; but it is just as scandalous to treat every errant footprint barely hardened overnight as an inescapable mold for future travel.”
Despite the well-settled, statutorily supported principle that the failure to indict constitutes a dismissal, the Bronx County District Attorney maintains that dismissal follows a failure to indict only if the grand jury votes to dismiss the charge. As Supreme Court found on defendant’s motion to dismiss the indictment in this case, Bronx County prosecutors “regularly instruct the grand juries that any action requires a vote of twelve jurors.” Pursuant to this scheme, when fewer than 12 grand jurors vote either to indict or to dismiss, the grand jury is deemed to have taken no action at all, thereby permitting the prosecutor to present additional evidence in what is really a dismissed case or to resubmit the case for another vote, without judicial leave.
At issue here is CPL 190.25 (1), which provides, in pertinent part: “The finding of an indictment, a direction to file a prosecutor’s information, a decision to submit a grand jury report and every other affirmative official action or decision requires the concurrence of at least twelve members thereof’ (emphasis added).
*59The majority accepts the District Attorney’s contention that the dismissal of a charge is one such “other affirmative official action or decision.” Indeed, People v Foster (supra) announced that, just as a defendant cannot be indicted unless at least 12 grand jurors vote to indict, a charge cannot be dismissed unless at least 12 grand jurors vote to dismiss it. For the following reasons, this is not, nor should it be, the law.
The plain meaning of the phrase, “[t]he finding of an indictment, a direction to file a prosecutor’s information, a decision to submit a grand jury report and every other affirmative official action or decision” (CPL 190.25 [1]; see Majewski v Broadalbin-Perth Cent. School Dist, 91 NY2d 577, 583 [1998]), is that the named actions and decisions are affirmative, that other actions and decisions that are like the named ones are affirmative, and that still others that are not like the named ones are not affirmative. This application of common sense is codified in the rule of statutory construction known as ejusdem generis (“of the same kind”), which “requires the court to limit general language of a statute by specific phrases which have preceded the general language * * *” (McKinney’s Cons Laws of NY, Book 1, Statutes § 239 [b]). That is, “the general phrase [every other affirmative official action or decision], since it follows words of a particular meaning, is to be construed as applying only to [actions or decisions] of the same kind as those precisely stated” (People v Shapiro, 50 NY2d 747, 764 [1980]). Since dismissal is not named in CPL 190.25 (1), it can be regarded as an affirmative action or decision only if it is “of the same kind” as the three actions or decisions that are “precisely stated.”
Examination of the provisions governing the named affirmative actions or decisions with the provision governing dismissal reveals, at a minimum, the following distinctions. Each affirmative action or decision must be supported by evidence that satisfies a particular standard.
For the finding of an indictment, CPL 190.65 (1) provides that:
“a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense * * *, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.”
For a direction to file a prosecutor’s information, CPL 190.70 (1) provides that:
*60“a grand jury may direct the district attorney to file in a local criminal court a prosecutor’s information charging a person with an offense other than a felony when (a) the evidence before it is legally sufficient to establish that such person committed such offense, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.”
For a decision to submit a grand jury report, CPL 190.85 provides that:
“[a] grand jury may submit to the court by which it was impaneled, a report * * *
“[Concerning misconduct, non-feasance or neglect in public office by a public servant as the basis for a recommendation of removal or disciplinary action [and that] * * *
“[t]he court to which such report is submitted shall * * * make an order accepting and filing such report as a public record only if the court is satisfied that it * * *
“is supported by the preponderance of the credible and legally admissible evidence” (CPL 190.85 [1] [a]; [2] [a]). '
Dismissal of a charge that a person committed a crime, on the other hand, follows from the failure of the evidence to meet the standard for the finding of an indictment. CPL 190.75 (1) provides:
“If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge.”
The language of the provisions governing each of the affirmative actions or decisions is permissive. The grand jury “may’ indict (CPL 190.65 [1]), “may” direct the District Attorney to file a prosecutor’s information (CPL 190.70 [1]), and “may” submit a grand jury report (CPL 190.85), when the evidence meets the relevant standard. The language of the provision governing dismissal, on the other hand, is peremptory. The *61grand jury “must” dismiss the charge when the evidence fails to meet the standard for the finding of an indictment (CPL 190.75 [1]). The plain meaning of this language is that, even when it is convinced by the evidence that the person charged is likely to have committed an offense, the grand jury may choose not to indict the person (see e.g. Note, The Grand Jury as an Investigative Body, 74 Harv L Rev 590, 590 [grand jury’s function “to protect the accused by its power not to indict those whom the government wished to punish”]; People v Valles, 62 NY2d 36, 42-43 [1984] [Meyer, J., dissenting on whether prosecutor must instruct grand jury on affirmative defense (“Unquestioned * * * has been the right of the Grand Jury to nullify the law by refusing to indict notwithstanding the presentation to it of evidence sufficient to sustain an indictment”)]). When the evidence fails, however, the grand jury has no choice but to dismiss.
Each of the named affirmative actions or decisions results in further proceedings against the defendant. When a grand jury indicts a person, the person goes to trial. When a grand jury directs the District Attorney to file in a local criminal court a prosecutor’s information charging a person with an offense other than a felony, the person goes to trial. When the court accepts a grand jury report of a public servant’s misconduct, nonfeasance or neglect in public office, the report is filed as a public record and the public servant may be subject to removal or discipline. Dismissal, on the other hand, results not in further proceedings against the defendant but in the termination of the proceedings and the restoration of the defendant to the status quo ante.
In sum, dismissal is profoundly unlike the named affirmative actions and decisions. Therefore, unlike them, it does not require the concurrence of 12 grand jurors. As indicated, until two years ago, when People v Foster (supra) was decided, this principle was well established. “The grand jury must file a finding of dismissal with the superior court if it finds that the proof does not support an indictment of the defendant for a particular offense. This result is reached when the grand jury fails to vote affirmative action” (Gray, New York Criminal Practice, at 107 [2d ed]). It was only after the decisions in People v Foster (supra) and People v Medina (supra) that the second sentence quoted above was deleted (see Gray, New York Criminal Practice, 2002 Supp, at 61). A reaffirmation by this Court of long-established grand jury procedure would be timely and provident.
*62The legislative history of the statute is compelling. The first comprehensive New York criminal procedure statute was the Code of Criminal Procedure of 1881, which provided that “[a]n indictment cannot be found without the concurrence of at least twelve grand jurors” (§ 268) and that, “[i]f twelve jurors do not concur in finding an indictment, the depositions (and statement, if any) transmitted to them, must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed” (§ 269). Thus, sections 268 and 269 together directed a grand jury to ascertain by a vote whether there were 12 members who would find an indictment and to report the result of that vote as an indictment if there were 12 or a dismissal if there were not at least 12. A separate provision set forth the standard of evidence for the finding of an indictment (§ 258).
The Criminal Procedure Law was enacted in 1970 to repeal and replace the Code of Criminal Procedure, as amended through the years.1 However, CPL 190.25 (1) and 190.75 (1) were derived from sections 268 and 269 of the Code, respectively;2 CPL 190.65 (1) was derived from section 258.3 These CPL provisions operate in the same way as the Code provisions from which they are derived. CPL 190.25 (1) and 190.65 (1) together provide that a grand jury may indict a person only when 12 of its members agree that “(a) the evidence before it is legally sufficient to establish that [the charged] person committed [the charged] offense * * *, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense” (hereinafter, evidence that is legally sufficient and legally credible). In other words, evidence is legally sufficient and legally credible only when 12 or more grand jurors agree that it is. It follows ineluctably that, when there is no such agreement among any 12 jurors, the evidence is either not legally sufficient or not legally credible (or it is neither). CPL 190.75 (1) requires that a charge be dismissed if the evidence is either not legally sufficient or not legally credible. Therefore, when no 12 grand jurors agree that the evidence is legally sufficient and legally credible, the charge must be dismissed. In short, the text of the *63CPL is organized differently from that of the Code, but the procedure itself remains the same. The CPL directs a grand jury to ascertain by a vote whether there are 12 members who would find an indictment and to report the result of that vote as an indictment if there are 12 or a dismissal if there are not at least 12. The statute does not require — nor does it serve any purpose intended by the Legislature to require — grand jurors additionally to vote expressly on whether to dismiss the charge.
Moreover, to require a grand jury to vote on whether to dismiss a charge is antithetical to the grand jury’s historical “dual role of investigating crimes and protecting citizens from unfounded prosecutions and governmental overreaching” (People v Adessa, 89 NY2d 677, 682 [1997]). This protective role is guaranteed by article I, § 6 of the New York Constitution (“No person shall be held to answer for a capital or otherwise infamous crime * * *, unless on indictment of a grand jury * * *”). Our grand jury was intended to operate substantially like its English progenitor (see Costello v United States, 350 US 359, 362 [1956]). That is, “[w]hen the grand jury have heard the evidence, if they think it a groundless accusation, * * * they assert * * *, ‘not a true bill;’ and then the party is discharged without farther answer. * * * But, to find a bill, there must at least twelve of the jury agree: for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital of-fence, unless by the unanimous voice of twenty four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation; and afterwards, by the whole petit jury, of twelve more, finding him guilty upon his trial” (W. Blackstone, Commentaries on the Laws of England, A Facsimile of the First Edition of 1765-1769, vol IV, Of Public Wrongs [1769], at 301).
The converse contention, that no charge against a man can be dismissed except by unanimous voice of 12 grand jurors denying the accusation, subverts the role of protecting individuals from unfounded prosecutions (cf. People v Batashure, 75 NY2d 306, 310 [1990] [“It is simply not permissible for a District Attorney to inform grand jurors, who by statute and Constitution, have the unique responsibility to decide whether to vote an indictment, that as a matter of law the prosecutor has already determined that there is enough evidence to warrant that action. At the very least, such an instruction delivered to laypersons carries an unacceptably high risk that *64they might misconstrue or undervalue their own role in reviewing the evidence, or even assume that the defendant should be indicted”]). To serve their true purpose, grand jurors must understand as they decide whether to vote an indictment that their collective vote on that one question is conclusive, whatever the outcome. I refer here to the vote that the grand jury reports to the prosecutor. If 12 or more of its members voted yes, then the grand jury may find a “true bill,” or an indictment. If fewer than 12 of its members voted yes, then the grand jury must return “no true bill,” or a dismissal.
Any indication to a grand jury, as was given here, that a vote of fewer than 12 to indict is inconclusive absent a vote of at least 12 to dismiss, whether communicated by the prosecutor in an explicit instruction that any action requires the concurrence of 12 grand jurors or in the treatment of an insufficient vote to indict as an impasse to be broken by presenting additional evidence, is impermissible. “When the District Attorney’s instructions to the Grand Jury are so incomplete or misleading as to substantially undermine [its] essential function [of protecting individuals from unfounded and arbitrary accusations], it may fairly be said that the integrity of that body has been impaired” (People v Calbud, Inc., 49 NY2d 389, 396 [1980]).
The only situation in which a grand jury’s inability to indict does not result in dismissal of the charge is where the grand jury decides sua sponte to reconsider the charge rather than filing the dismissal (see CPL 190.75 [1], [3]; People v Montanez, 90 NY2d 690 [1997]).
CPL 190.75 (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.”
CPL 190.75 (3) was derived from section 270 of the Code of Criminal Procedure of 1881, which provided that “[t]he dismissal of a charge does not, however, prevent its being again submitted to a grand jury as often as the court may so direct. But without such direction it cannot be again submitted.” At common law, a prosecutor could submit a charge to a grand *65jury repeatedly without court authorization.4 Section 270 reflected the Legislature’s recognition of “a need to insulate the Grand Jury process from the excesses which would flow from domination by a prosecutor” (People v Wilkins, 68 NY2d 269, 273 [1986]). CPL 190.75 (3) was enacted to limit the multiple submissions authorized by section 270 (id.) and permits one court-authorized resubmission only. This provision reflects the Legislature’s recognition that judges as well as prosecutors may be “overzealous” and that “repeated re-submissions of the same charge ‘is contrary to the spirit of our criminal law’ * * * whether such re-submission is upon application of the district attorney or upon the court’s own motion.”5 However, when a grand jury that has voted and failed to indict decides sua sponte to reconsider the matter, neither the letter nor the spirit of CPL 190.75 (3) is violated (People v Montanez, supra, 90 NY2d at 694). “Since the reconsideration is not prompted by the prosecutor, there is no possibility of prosecutorial overreaching; the integrity and independence of the Grand Jury is not impugned” (id.).
This Court reinstated the indictment in Foster (supra, 279 AD2d at 321) upon a finding that the grand jury had made a truly sua sponte decision to demand more evidence and reconsider the charges. However, closer examination of the record reveals that this finding is not supported. At a hearing on the defendant’s motion to dismiss the indictment, the foreman of the grand jury testified that he had told the prosecutor that the jury could not muster 12 votes either to dismiss or to indict and needed more evidence. This testimony is consistent with the finding of Supreme Court in the instant case that Bronx prosecutors regularly instruct grand juries that any action requires a vote of 12 jurors. And it demonstrates that it was this instruction that was the catalyst for the grand jury’s request for more evidence. Having concluded that further deliberation on the evidence already presented would not yield the required 12 votes either way, the grand jury had no choice but to ask for more evidence. If it had not been instructed to regard a vote of fewer than 12 to indict as an impasse rather than a decision, it would not have perceived a need for more evidence (see People v Batashure, supra, 75 NY2d at 310 [“such *66an instruction * * * carries an unacceptably high risk that they might * * * assume that the defendant should be indicted”]). Thus, the grand jury’s request in Foster cannot be said to have been truly sua sponte. In the instant case, there was no request at all from the grand jury. After the foreperson informed the prosecutor that the grand jury was unable to come to a decision either way, the prosecutor volunteered to “attempt to bring in additional witnesses and give you additional testimony” and indeed did present additional evidence.
“The distinction which the courts have drawn between sua sponte reconsideration by the Grand Jury and reconsideration at the behest of the prosecutor is a sensible one, and is consistent with the policies underlying CPL 190.75” (Montanez, supra, 90 NY2d at 694-695). A rule requiring 12 votes either to indict or to dismiss, however, obliterates this sensible distinction. Reconsideration by a grand jury that fails either to indict or to dismiss is a reconsideration at the behest of the prosecutor. In Foster, as in the instant case, the prosecutor thwarted the “beneficent purpose” of CPL 190.75 (3) (People ex rel. Flinn v Barr, supra, 259 NY at 109) by refusing to accept the grand jury’s insufficient vote to indict as a dismissal. In each case, the prosecutor presented additional evidence and resubmitted the case to the grand jury, without judicial leave, and in that way ultimately secured the indictment (cf. Wilkins, supra at 275 [power to withdraw a case from grand jury consideration after completing the presentation of evidence would furnish the prosecutor “the means of defeating CPL 190.75 (3) in almost every case by withdrawing all but ‘open and shut’ cases and resubmitting them after further preparation or a more compliant Grand Jury is impaneled”]).6 The rule that permitted the prosecutor in Foster and in the instant case to thwart the beneficent purpose of CPL 190.75 (3) violates both the letter and the spirit of the statute (see Montanez, supra at 694).
The majority appears to argue that there never was a dismissal here because the grand jury never filed a finding of dismissal (CPL 190.75 [1]). However, it is “through its agent the District Attorney” that the grand jury files its vote (Montanez, supra, 90 NY2d at 694). “[T]he [majority’s] theory would permit *67a prosecutor to do indirectly that which the statute prohibits him to do directly — to resubmit charges to a Grand Jury without judicial permission. It is doubtful that the Legislature intended that by the simple subterfuge of failing to file a dismissal, the salutary purpose of the statute may be frustrated” (People v Davis, supra, 114 Misc 2d at 647 [citations omitted]; see also People v Cade, 74 NY2d 410, 416 [1989] [filing provision is directory only and imposes no time limits]).
For the foregoing reasons, I would affirm the order granting defendant’s motion to dismiss the indictment.
Tom and Williams, JJ., concur with Buckley, P.J.; Rosenberger and Ellerin, JJ., dissent in a separate opinion by Ellerin, J.
Order, Supreme Court, Bronx County, entered on or about July 31, 2000, reversed, on the law, defendant’s motion to dismiss indictment denied and the indictment reinstated.
. See Criminal Procedure Law, McKinney’s Cons Laws of NY, Book 11A, at 1; L 1970, ch 996, § 1.
. See Historical and Statutory Notes, McKinney’s Cons Laws of NY, Book 11A, CPL 190.25, at 214; CPL 190.75, at 348.
. See Historical and Statutory Notes, McKinney’s Cons Laws of NY, Book 11A. CPL 190.65. at 328.
. Staff Comment, 1967 Proposed New York Criminal Procedure Law § 95.75, at 165.
. Staff Comment, 1967 Proposed New York Criminal Procedure Law § 95.75, at 166, 167, quoting People ex rel. Flinn v Barr, 259 NY 104, 109 (1932).
. The District Attorney makes much of a dictum in Wilkins (supra) that supports his position that CPL 190.25 (1) requires the concurrence of 12 grand jurors for a dismissal. Howevér, that issue was not before the Court in Wilkins, where, as the Court itself noted, “the question [of how to dispose of the charge] was not put to a vote” (id. at 274).