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Only Judges Can, Prosecutors Cannot Withdraw Grand Jury Indictments

by Surajit Sen Sharma

On Tuesday, the New York Court of Appeals ordered a new trial of a criminal case when they found prosecutors had improperly withdrawn a count of a grand jury indictment.

03/28/12 In a unanimous decision the Court of Appeals found that the power to withdraw grand jury counts is held only by courts of law and prosecutors do not have that authority. In the case before the NY Court of Appeals, Monroe County prosecutors had argued that prosecutors had the authority to withdraw whichever indictment they deemed fit.

At the second trial, in 2008, the vehicular assault charge was sought to be withdrawn by the prosecutors. The attorney of the accused objected to the move but Monroe County Judge Richard Keenan held that prosecutors have the authority to withdraw the indictment. The jury convicted James Extale of second-degree assault and he was sent to prison for seven years. In 2010, the Fourth Department affirmed the conviction

Judge Robert Smith noted on the issue that Whether such a count should be dismissed at the prosecutors request is an issue to be decided by the court in its discretion.

and held that prosecutors have broad discretion in determining when and in what manner to prosecute a suspected offender. This line of thought has been reversed by the Court of

Incidentally, this is the second time that a new trial is being ordered against James Extale, who had allegedly wounded a Rochester police officer with his pickup truck in 2004. James was found to be driving drunk. The accused was found guilty and a grand jury indicted him in 2005 and sentenced him to 21 years in prison. In 2007, the Appellate Division, Fourth Department, questioned and overturned two of the convictions related to first-degree assault and first-degree vehicular assault. The Appellate Division held that for the convictions to stand mental states of the accused needed to be proven and mens rea established beyond reasonable doubt.

Appeals on Tuesday establishing that it is the discretion of the court, whether to allow withdrawal of a grand jury indictment, and the only thing that a prosecutor might do is to request the court to decide on the matter. The Court of Appeals wrote, Nothing in the text or legislative history of the Criminal Procedure Law expresses any intention to restore to prosecutors the unilateral right to refuse to proceed on account of a grand jury indictment. This authority of the prosecutors, known legally as nolle prosequi, worked until 1881. Then state lawmakers abolished the power and handed over the discretion to the courts.

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THE LARGEST COLLECTION OF LEGAL JOBS ON EARTH

LawCrossing
Legal Daily News Feature

Extales prosecutors argued that since no mention of that prohibition was made in the Criminal Procedure Law, 1970, the power was automatically reinstated to prosecutors.

The case is the People v. James Extale, New York State Court of Appeals No. 35.

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