The defendant moves for an inspection of the Grand Jury Minutes and for a dismissal of the indictment or a reduction of the charges on the ground of legal insufficiency of the evidence adduced before the Grand Jury.

The Grand Jury was presented with evidence that on July 16, 2006, defendant committed a series of acts against complainant A. B., defendant's wife. The Grand Jury was instructed to consider charges of sexual abuse in the first and third degrees and rape in the first and third degrees, among other charges. Defendant was subsequently indicted on all charges except rape in the first and third degrees, to which the Grand Jury returned a No True Bill.Defendant's main contention is that the Grand Jury's vote was repugnant. Defendant also contends that the People's failure to instruct the Grand Jury on the "marital exception" to sexual abuse in the third degree requires dismissal of that count. That argument will be addressed in a separate written decision.

Defendant contends that the Grand Jury's vote was repugnant because it returned a True Bill on the charge of sexual abuse in the first degree ^[FN1] and a No True Bill on the charge of rape in the first degree.^[FN2] The offenses of rape in the first degree and sexual assault in first degree, as charged in this case, are identical except that sexual abuse in the first degree requires proof of sexual contact by means of forcible compulsion and rape in the first degree requires proof of sexual intercourse by means of forcible compulsion. The only evidence relating to these offenses adduced before the Grand Jury was testimony by the complainant that defendant forced her to have sexual intercourse with him by putting his penis in her vagina. Complainant did not testify that there was any other sexual contact involved.

Defendant argues that the vote of a No True Bill as to the charge of rape in the first degree reflects the Grand Jury's determination that there was insufficient evidence of forcible compulsion necessary for a charge of rape in the first degree and therefore the charge of sexual abuse in the first degree must be dismissed as repugnant.

As this Court explained in People v. Ferguson, NYLJ, p. 28, col. 3 [7/9/98]:

"The theory of repugnancy is that a defendant should not be convicted for a crime for which the jury has found that the defendant has not committed an essential element. (People v. Tucker, 55 NY2d 1, 6 [1981]). In the trial context, a conviction will be reversed only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which a guilty verdict was rendered.'^[FN3] (Id. at 7). The failure of a jury to find adequate proof of an essential element of the crime renders the evidence inadequate as a matter of law, and the true bill cannot be sustained. (People v. Cummings, 155 Misc 2d 970, 973 [1992])."

There have been conflicting opinions at the trial court level as to whether the concept of repugnancy applies to Grand Jury proceedings. (Repugnancy should not apply: People v. Mazcyk, 6 Misc 3d 209 [Kings County 2004]; People v. Lin, 169 Misc 2d 689 [Kings County 1996]. Repugnancy should apply: People v. Ruiz, NYLJ, p. 23, col. 2 [7/21/03 Bronx County]; People v. Seifert, 188 Misc 2d 970 [Nassau County 2001]; People v. DeJean, NYLJ, p. 25 col. 3 [8/18/94 Kings County]). While various appellate courts have discussed whether repugnancy applies to a Grand Jury vote, no court has conclusively decided this issue.^[FN4]

The consequences of inconsistent Grand Jury decisions are distinguishable from those of petit jury verdicts. For example, jeopardy attaches once a petit jury has been sworn in. (See, CPL 40.20-40.30). However, there is no double jeopardy provision under the law in the Grand Jury context. Rather, the CPL permits the People to request permission from the court to resubmit charges to the same or another Grand Jury if a Grand Jury dismisses charges. (CPL 190.75[3]).

Additionally, the role of the Grand Jury is distinguishable from that of a petit jury. A petit jury evaluates the merits of the charges and is instructed that it "must" convict if the applicable standards of proof have been met. (See, People v. Lin, 169 Misc 2d 689, 692 [Kings County 1996]). On the other hand, a Grand Jury determines only whether there is sufficient evidence supporting the charges to justify a trial and is instructed that it "may" indict if the standards of proof have been met. (Id.). Therefore, a Grand Jury may be more lenient than a petit jury in rendering its decision.

For the foregoing reasons, the Court holds that repugnancy does not apply to Grand Jury votes.

F I N D I N G S

The Court has read the Grand Jury Minutes and finds the evidence adduced before the Grand Jury to be legally sufficient to establish the finding of each and every count of the indictment. The Court finds no violation of CPL §210.35 in the presentation to the Grand Jury. Any error found by the court did not impair the integrity of the grand jury proceeding to the possible prejudice of the defendant. [*3]

The Assistant District Attorney correctly charged the Grand Jury with respect to the applicable law.

Accordingly, the defendant's motion to dismiss each count of the indictment is denied.

This shall constitute the Decision and Order of the Court.

E N T E R.

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J.S. C.