| People v Hickman |
| 2009 NY Slip Op 50090(U) [22 Misc 3d 1111(A)] |
| Decided on January 21, 2009 |
| Supreme Court, Kings County |
| McKay, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through January 28, 2009; it will not be published in the printed Official Reports. |
The People of the State
of New York,
against Darnell Hickman, DEFENDANT |
On consent the Court has inspected the Grand Jury minutes in this action.
Based on this review the Court finds that the prosecutor violated CPL 190.75(3) by re-submitting, without leave of the Court, the FIRST COUNT (Penal Law § 220.39-1) to the same Grand Jury which had already voted a "No True Bill" on this count.
While the record shows that one or more Grand Jurors asked to re-consider their previous dismissal without any direct urging by the prosecutor, this occurred only after the prosecutor recalled the same undercover officer - - seven days after defendant had testified and the dismissal vote was rendered - - to testify again to the same facts. That circumstance, although done under the guise of submitting two additional (lesser included, Penal Law §§ 220.31 and 220.03), counts [FN1] necessarily entailed substantial "prosecutorial involvement" in the reconsideration process, which has been condemned in People v. Montanez, 90 NY2d 690, 692 (1997). See also, People v. Cade, 74 NY2d 410 (1989) and People v. Wilkins, 68 NY2d 269 (1986).
The indictment is therefore DISMISSED, but the District Attorney is granted leave to re-present these charges to another Grand Jury, on sufficient notice to the defense to permit defendant to testify.
IT IS SO ORDERED. [*2]
ENTER,
_____________________________
J.S.C.