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
IN THIS MENTAL HYGIENE LAW ARTICLE 10 PROCEEDING TO DETERMINE WHETHER RESPONDENT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY WARRANTING CIVIL MANAGEMENT, THE JUDGE CONFLATED TWO DIFFERENT LEGAL STANDARDS, ERRONEOUSLY FOUND THAT A MENTAL ABNORMALITY CANNOT BE PROVEN BY A CONSTELLATION OF CONDITIONS, DISEASES AND DISORDERS, AND IMPROPERLY RELIED ON OUTSIDE RESEARCH (FIRST DEPT). ​
Brazilian Citizens Had Alternative Legal Remedies and Therefore Could Not Use a Writ of Prohibition to Stop a New York Prosecution/The Fact that the Petitioners Would Have to Come to New York to Employ the Alternative Remedies During the Course of a Criminal Prosecution Did Not Render those Remedies Inadequate
MOTION FOR DIRECTED VERDICT MADE BEFORE PLAINTIFF CLOSED ITS CASE SHOULD NOT HAVE BEEN GRANTED, MOTION FOR DIRECTED VERDICT BASED UPON PLAINTIFF’S ADMISSIONS PROPERLY GRANTED, INDEMNIFICATION AGREEMENT VOID UNDER GENERAL OBLIGATIONS LAW (FIRST DEPT).
COMPLEX ISSUES ARISE IN RETROACTIVELY DETERMINING THE APPROPRIATE RENTAL AMOUNT FOR A RENT STABILIZED APARTMENT OCCUPIED BY THE SAME TENANTS SINCE 2000.
PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT).
Elements of Causes of Action for (1) Misappropriation of (a) Trade Secrets, (b) Business Ideas, and (c) Labor, Skills and Expenditures, (2) Breach of Fiduciary Duty (Delaware Law), (3) Aiding and Abetting Breach of Fiduciary Duty (Delaware Law), (4) Unjust Enrichment, and (5) Promissory Estoppel Described in Some Detail
DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT).
IT IS THE ROLE OF THE COURT, NOT THE ARBITRATOR, TO DETERMINE WHETHER A NON-SIGNATORY IS BOUND BY AN ARBITRATION AGREEMENT (FIRST DEPT).

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 © 2026 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...