Relates to prosecution by superior court information following dismissal of an indictment or count thereof

Title of bill

An act to amend the criminal procedure law, in relation to prosecution by superior court information following dismissal of an indictment or count thereof

Purpose

This measure would amend the Criminal Procedure Law to establish a procedure to allow a defendant to waive indictment and be prosecuted by superior court information in cases where the court has dismissed an initial indictment against the defendant.

Summary of provisions

To avoid the burden of securing anew indictment or filing a new felony complaint, this measure would amend paragraph (a) of subdivision 1 of section 195.10 and subdivision 4 of section 210.20 of the Criminal Procedure Law to provide that after a court dismisses an indictment against a defendant, if the court authorizes the People to resubmit the charge to the grand jury, the defendant will be deemed held for the action of the grand jury. This would then provide the basis for the defendant to waive prosecution by indictment and to be prosecuted by superior court information.

Justification

Under current law, a defendant may only waive indictment and consent to be prosecuted by a superior court information where a local criminal court has held the defendant for the action of a grand jury, the defendant is not charged with a class A felony, and the district attorney consents to the waiver (CPL 195.10). The Court of Appeals has strictly construed these conditions, and has repeatedly invalidated waivers made with the consent of both the defendant and the prosecution where the parties have otherwise failed to conform to the statute (see People v. Boston, 75 NY2d 585 1990; People v. Trueluck, 88 NY2d 546 1996; People v. Casdia, 78 NY2d 1024 1991; compare People v. D'Amico, 76 NY2d 877 1990).

It is not unusual, however, for the defendant and the prosecution to negotiate a plea in the period after a court dismisses an indictment but before the prosecution has represented the case to the grand jury. Plea negotiations are often completed during this interlude because the parties have invariably completed discovery and motion practice on the original indictment and generally have a better understanding of the relative strengths and weaknesses of the case. Yet, although the parties may reach agreement on a plea, there is no readily available procedure for the court to accept the plea. A superior court information is unavailable to the parties because the defendant has not been technically "held" for the action of the grand jury (see People v. Rivera, 14 Misc.3d 726 (2006¤. Either the prosecution must represent the case to the grand jury and secure a new indictment, a needless waste of resources and a burden for witnesses, or else follow the strict requirements for filing a superior court information. This requires the prosecutor to file a new felony complaint, re-arrest the defendant on the new felony complaint and arraign the defendant in the local criminal court so the defendant can be "held" for the action of the grand jury.

Legislative history

2008: S.7077 - Referred to Codes (Office of Court Administration Departmental (Internal 107 - 2008)

Fiscal implications

None. EFFECTIVE DATE : Immediately.