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ONE OF THE GRAND JURORS HAD A FELONY CONVICTION RENDERING THE GRAND JURY ILLEGALLY CONSTITUTED; THE INDICTMENT SHOULD HAVE BEEN DISMISSED; WHETHER THE DEFENDANT WAS PREJUDICED WAS IRRELEVANT (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined the grand jury was illegally constituted because one of the jurors had a felony conviction. The indictment should have been dismissed without considering whether defendant was prejudiced:

CPL 210.20 (1) (c) authorizes a court to dismiss an indictment on the ground that “[t]he grand jury proceeding was defective, within the meaning of [CPL] 210.35.” As relevant here, CPL 210.35 provides that “[a] grand jury proceeding is defective . . . when . . . [t]he grand jury was illegally constituted” … . A grand jury is illegally constituted when … one of its members is not qualified to serve as a juror pursuant to the Judiciary Law … . Here, it is undisputed that the grand jury was illegally constituted because one of the grand jurors had been convicted of a felony, rendering him unqualified to serve as a grand juror (see Judiciary Law §§ 501, 510 [3]).

Despite the illegally constituted grand jury, the court nonetheless determined that dismissal of the indictment was unwarranted inasmuch as the alleged defect did not result in any prejudice to defendant. We conclude that it was error for the court to require a showing of prejudice before dismissing the indictment for a violation of CPL 210.35 (1). The Court of Appeals has held that “[t]he clear intention of [the drafters of CPL 210.35] was to establish a rule of automatic dismissal [of an indictment] for a limited number of improprieties that were deemed most serious”—including, inter alia, “the specific defect[] delineated in” CPL 210.35 (1) … . With respect to those most serious improprieties, “judicial inquiries into prejudice to the accused or other forms of actual harm are wholly out of place” … . Any consideration of prejudice is limited to defects alleged in connection with the catchall provision of CPL 210.35 (5) … . Here … there is no dispute that the grand jury proceedings were defective under CPL 210.35 (1) due to the presence of the unqualified grand juror, and therefore the court should have automatically dismissed the indictment without requiring any showing of prejudice by defendant … . People v Ashley, 2023 NY Slip Op 02432, Fourth Dept 5-5-23

Practice Point: If one member of a grand jury has a felony conviction, the grand jury is illegally constituted requiring automatic dismissal of the indictment. Whether the defendant was prejudiced is irrelevant.

 

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