The Fourth Department determined that not asking a grand jury to consider a charge is not the same as withdrawing a charge from the grand jury (which would require a judge’s permission to re-present):
… [T]he Court of Appeals has made clear that, ” [b]efore a grand jury may be said to have acted upon a charge, there must be some indication that it knew about it’ ” (Wilkins, 68 NY2d at 274). Moreover, “[t]here is no evidence in this record that would raise the primary concern of . . . Wilkins, namely that the People withdrew [the criminal sale charges] in order to present [them] to a more compliant grand jury” … . The People’s decision not to present the criminal sale charges for the consideration of the first grand jury is not ” fundamentally inconsistent with the objectives underlying CPL 190.75′ ” … , and we therefore conclude that this case does not present those ” limited circumstances’ ” to which the holding of Wilkins applies (id.). People v Lopez, 2016 NY Slip Op 07772, 4th Dept 11-18-16
CRIMINAL LAW (NOT ASKING A GRAND JURY TO CONSIDER A CHARGE FOR WHICH SOME EVIDENCE WAS PRESENTED DID NOT AMOUNT TO WITHDRAWAL OF THE CHARGE, WHICH WOULD REQUIRE JUDICIAL PERMISSION TO RE-PRESENT)/GRAND JURIES (NOT ASKING A GRAND JURY TO CONSIDER A CHARGE FOR WHICH SOME EVIDENCE WAS PRESENTED DID NOT AMOUNT TO WITHDRAWAL OF THE CHARGE, WHICH WOULD REQUIRE JUDICIAL PERMISSION TO RE-PRESENT)