Permission to Re-Submit Charges to a Second Grand Jury Was Required.
The prosecutor’s failure to get the court’s permission to re-submit charges to a second grand jury was a jurisdictional defect requiring dismissal of the indictment after a guilty plea. The first grand jury took “no affirmative action” on drug charges before them. There were not enough votes to indict on or dismiss the charges. The prosecutor then submitted the drug charges to a second grand jury which voted to indict. The First Department noted: “Even without a formal grand jury vote, a charge can be deemed “dismissed” within the meaning of CPL 190.75(3) if the prosecutor “prematurely takes the charge away from the grand jury…”. People vs Smith, 7310, 135/10, 801/10 First Dept. 2-7-13