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You are here: Home1 / Criminal Law2 / THE COURT DID NOT AUTHORIZE THE SECOND SUPERSEDING INDICTMENT PROCURED...
Criminal Law

THE COURT DID NOT AUTHORIZE THE SECOND SUPERSEDING INDICTMENT PROCURED BY THE PEOPLE AFTER A MISTRIAL, THE SECOND SUPERSEDING INDICTMENT WAS A NULLITY, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the second superseding indictment, procured after a mistrial, was a nullity:

Before trial commenced, the People obtained a superseding indictment … . A jury trial on the superseding indictment ensued; however, after the jury was impaneled and sworn, defendant’s motion for a mistrial was granted. The People subsequently obtained a second superseding indictment … . …

… [T]he second superseding indictment is a nullity and assert, therefore, that defendant’s conviction must be reversed and the matter remitted for further proceedings on the first superseding indictment. In declaring a mistrial, County Court did not dismiss the superseding indictment or authorize the People to re-present new charges to a grand jury. Accordingly, the People were limited to retrying defendant upon the superseding indictment, and the second superseding indictment was a nullity … . Where, as here, an indictment is a nullity, “any action or consequence that flowed from its filing . . . was necessarily a nullity as well”… . Accordingly, the judgment must be reversed. People v Moseley, 2019 NY Slip Op 03408, Third Dept 5-2-19

 

May 2, 2019
Tags: Third Department
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https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2019-05-02 11:22:162020-01-24 05:46:08THE COURT DID NOT AUTHORIZE THE SECOND SUPERSEDING INDICTMENT PROCURED BY THE PEOPLE AFTER A MISTRIAL, THE SECOND SUPERSEDING INDICTMENT WAS A NULLITY, CONVICTION REVERSED (THIRD DEPT).
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