You are here: / / FAILURE TO SEEK THE COURT’S PERMISSION BEFORE RE-PRESENTING THE MURDER...

FAILURE TO SEEK THE COURT’S PERMISSION BEFORE RE-PRESENTING THE MURDER CHARGE TO THE GRAND JURY WAS A JURISDICTIONAL DEFECT NOT SUBJECT TO A HARMLESS ERROR ANALYSIS 1ST DEPT.

The First Department, over a dissent, determined that the People’s failure to seek the court’s permission to re-present the murder charge to the grand jury was a jurisdictional defect to which a harmless error analysis could not be applied. The dissent argued the error was harmless because defendant (Allen) was acquitted of the murder charge (and convicted of manslaughter). The majority argued that the illegal murder charge loomed over the entire trial and necessarily affected defense strategy and jury deliberations:

The murder charge lacked jurisdictional legitimacy , violating Allen’s constitutional right to be tried for a felony only upon a valid indictment … . While the trial for murder did not violate double jeopardy, it cannot be doubted that the presence of the charge “impugn[ed] the very integrity of the criminal proceeding” (Mayo, 48 NY2d at 252). There is nothing to suggest that Mayo is limited to double jeopardy cases in the manner suggested by the dissent; indeed, the Mayo court recognized that errors of “constitutional magnitude . . . are so fundamental that their commission serves to invalidate the entire trial,” and are not susceptible to a traditional spillover analysis, which has its “most convincing application in the area of trial errors concerning the admissibility of evidence” … .

The dissent maintains that the right to an indictment by a grand jury is not a right “so basic to a fair trial that their infraction can never be treated as harmless error” (internal quotation marks omitted). However, the New York State constitution holds that no person shall be held to answer for an infamous crime unless upon indictment of the grand jury (NY Const, art 1, § 6), and the right to indictment by grand jury has been recognized “as not merely a personal privilege of the defendant but a public fundamental right which is the basis of jurisdiction to try and punish an individual” … .

Although defendant Allen was ultimately acquitted of the murder charge, the charge’s presence loomed over the trial, and in some way influenced the verdict. Rather than continuing to deliberate concerning Allen’s innocence — including evidence suggesting that he was surprised by the shooting, and may have intended that the victim receive no more than a “clipping” — the jury may have concluded that it had sufficiently grappled with the proof by acquitting him of the most serious charge. People v Allen, 2017 NY Slip Op 05501, 1st Dept 7-6-17

 

CRIMINAL LAW (FAILURE TO SEEK THE COURT’S PERMISSION BEFORE RE-PRESENTING THE MURDER CHARGE TO THE GRAND JURY WAS A JURISDICTIONAL DEFECT NOT SUBJECT TO A HARMLESS ERROR ANALYSIS 1ST DEPT)/INDICTMENT (FAILURE TO SEEK THE COURT’S PERMISSION BEFORE RE-PRESENTING THE MURDER CHARGE TO THE GRAND JURY WAS A JURISDICTIONAL DEFECT NOT SUBJECT TO A HARMLESS ERROR ANALYSIS FIRST DEPT)/GRAND JURY  (FAILURE TO SEEK THE COURT’S PERMISSION BEFORE RE-PRESENTING THE MURDER CHARGE TO THE GRAND JURY WAS A JURISDICTIONAL DEFECT NOT SUBJECT TO A HARMLESS ERROR ANALYSIS FIRST DEPT)/JURISDICTIONAL DEFECT (CRIMINAL LAW, FAILURE TO SEEK THE COURT’S PERMISSION BEFORE RE-PRESENTING THE MURDER CHARGE TO THE GRAND JURY WAS A JURISDICTIONAL DEFECT NOT SUBJECT TO A HARMLESS ERROR ANALYSIS FIRST DEPT)

You might also like
ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT).
UNDER THE FACTS, PLAINTIFF CAN ASSERT A CLAIM FOR TORTIOUS INTERFERENCE WITH CONTRACT AGAINST DEFENDANT, EVEN THOUGH BOTH ARE SIGNATORIES TO THE MULTILATERAL CONTRACTS; THE PARTIES HAVE DIFFERENT RIGHTS AND DUTIES UNDER THE CONTRACTS (FIRST DEPT).
PLAINTIFF WAS ON A LADDER WHEN HE RECEIVED AN ELECTRIC SHOCK; THERE WAS NO SHOWING THE LADDER WAS DEFECTIVE AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION; HOWEVER PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241 (6) CAUSE OF ACTION AGAINST THE DEFENDANT RESPONSIBLE FOR TURNING OFF THE ELECTRICITY (FIRST DEPT).
COMMON INTEREST PRIVILEGE MAY APPLY TO SUBPOENAED DOCUMENTS.
DEUTSCHE BANK BREACHED CREDIT DEFAULT SWAP AGREEMENTS.
DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST DEPT).
RESULTS OF NYPD DISCIPLINARY TRIALS ARE PERSONNEL RECORDS EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.
Notice of Claim Timely Served by an Unauthorized Method Deemed Valid/Motion to Renew Based Upon Information Known at the Time of the Original Motion Properly Heard in Exercise of Discretion

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

(1) PURSUANT TO THE PERMISSIVE COUNTERCLAIM RULE, THE DOCTRINE OF RES JUDICATA... COUNTY COURT JUDGE DID NOT HAVE THE AUTHORITY TO ISSUE A VERDICT BASED UPON...