CIPARICK, J. (dissenting):

Because a prosecutor may not, without judicial leave and absent a sua sponte request from the Grand Jury, present additional evidence and resubmit a case after the Grand Jury failed to vote a true bill on the initial presentation, I respectfully dissent, and would reverse the Appellate Division.

This case presents a question of statutory interpretation, specifically whether the agreement of 12 jurors is required for a Grand Jury to dismiss submitted charges. Section 190.25 (1) provides, in part, that

"[t]he finding of an indictment, a direction to file a prosecutor's information, a decision to submit a grand jury report and every other affirmative official action or decision [by a Grand Jury] requires the concurrence of at least twelve members thereof"

(CPL 190.25 [1] [emphasis added]). As dismissal is not one of the individually listed actions, the question of whether a Grand Jury must by a concurrence of 12 members vote to dismiss turns on whether a dismissal falls into the category of an "affirmative official action or decision." Since the general phrase follows words of particular meaning, it is to be construed as applying to actions of the same kind as those specifically enumerated ( see People v Shapiro, , 50 NY2d 747, 764 [1980]; see also McKinney's Cons Laws of NY, Book 1, Statutes § 239 [b]).

CPL 190.25 (1) lists three actions -- the finding of an indictment, a direction to file a prosecutor's information and a decision to submit a grand jury report -- as being similar to "every other affirmative official action" requiring the concurrence of 12 members. Unlike a dismissal, each of these named acts results in further proceedings against either the defendant or, in the case of a grand jury report, a public servant. A dismissal, on the other hand, ends the proceedings against the defendant altogether. There is no further action to be taken.

The original Practice Commentary to section 190.25 lends support to this distinction ( see Denzer, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 190.25 [1971]). It notes that the part of "subdivision [1] which requires concurrence of twelve grand jurors for other official action[s]" did not exist in the Code of Criminal Procedure, which preceded the CPL (Denzer, supra, CPL 190.25 at 110). "Under the Code, there was a gap in the law because nowhere was it stated, for example, how many grand jurors were required to concur on the calling of a witness, on the granting of immunity to a witness, etc." (Denzer, supra, CPL 190.25 at 110). It was this gap that section 190.25 was intended to fill. Similar to the examples found in the statute, the illustrations of affirmative official action listed in the Commentary advance the investigation of the charges against a defendant, as opposed to a dismissal which terminates all action.

No gap existed in the law concerning the duty of the grand jurors when they failed to garner a vote of 12 to indict. The Code required that an indictment be found by the concurrence of 12 jurors ( see Code of Criminal Procedure § 268), and provided that the Grand Jury had to dismiss the charges upon its failure to achieve such a vote. As noted by the majority, section 269 of the Code of Criminal Procedure provided, in pertinent part:

"If twelve grand jurors do not concur in finding an indictment, the depositions (and statements, if any) transmitted to them, must be returned to the court, with an endorsement thereon, signed by the foreman . . . to the effect that the charge is dismissed"

(emphasis added).

While the CPL does not include this specific language, the statutory language governing a dismissal continues to be compulsory. The statute provides, in part, that "a grand jury may . . . [d]ismiss the charge before it, as provided in section 190.75" (CPL 190.60 [4]). Reference to section 190.75 clarifies the circumstances under which a dismissal of submitted charges is mandatory. CPL 190.75 (1) states:

"If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled"

(emphasis added).

In contrast, the finding of an indictment, direction to file a prosecutor's information and the filing of a grand jury report are permissive acts, implicating the discretion of grand jurors. Section 190.65 (1)(a) of the CPL provides that "a grand jury may indict a person for an offense when . . . the evidence before it is legally sufficient to establish that such person committed such offense" (emphasis added). Similarly, the provisions of the statute governing both the Grand Jury's direction to file a prosecutor's information and its decision to submit a grand jury report employ the permissive word "may" ( see CPL 190.70 [1]; see also CPL 190.85).

Thus, as the phrase "affirmative official action" takes its meaning from the acts enumerated in the statute, and other actions of like kind that advance the proceeding, I cannot agree that a dismissal, which terminates it, requires a vote of 12 grand jurors. I am in accord with the dissenting justices of the Appellate Division that "[t]he CPL directs a grand jury to ascertain by a vote whether there are 12 members who would find an indictment and to report the result of that vote as an indictment if there are 12 or [as] a dismissal if there are not at least 12" (305 2 45, at 63 [2003]).

Here, the prosecutor presented all witnesses, including one at the specific request of the Grand Jury, and instructed the jurors on the law.[1] She formally asked them to commence deliberations on the charges of burglary, attempted robbery, criminal possession of a weapon, menacing, endangering the welfare of a child and harassment. After some deliberations, the foreperson informed the prosecutor that the grand jurors could not "come to a decision either way." Clearly, having reviewed the evidence first presented, the Grand Jury in effect found that it was not "legally sufficient to establish that [defendant] committed such crime[s] or any other offense[s]" (CPL 190.75 [1] [a]) or "that there [was no] reasonable cause to believe" that defendant committed the crimes charged or any other offense ( see CPL 190.75 [1][b]). Their inability to vote a true bill was equivalent to a rejection of the People's case as legally insufficient or incredible.

Therefore, under the statute, since the evidence failed, the grand jurors were required to dismiss the charges. If this were not the case then a deadlocked Grand Jury might have to continue deliberating indefinitely, which could not have been the intent of the Legislature. That the Grand Jury did not "file its finding of dismissal with the court" (CPL 190.75) is of no consequence as filing goes to the finality of the dismissal, not to whether, in fact, there was a dismissal ( see People v Montanez, , 90 NY2d 690, 694 [1997]). Moreover, any confusion on the part of the Grand Jury concerning what action to take upon their failure to reach consensus, can be easily remedied by proper instruction.

Pursuant to CPL 190.75 (3), "[w]hen a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury." The purpose of section 190.75 is to prevent prosecutorial overreaching, which may malign the Grand Jury's integrity and independence. As we previously recognized, "[t]he statute was enacted to curb abuses that resulted from the common-law rule that allowed prosecutors to resubmit charges to successive Grand Juries ad infinitum until one voted an indictment" ( Montanez, 90 NY2d at 693, citing People v Wilkins, , 68 NY2d 269, 273 [1986]).

An exception to the prohibition against resubmission without leave of court exists "when the Grand Jury votes to dismiss a charge and then sua sponte decides to reconsider the matter before filing" the dismissal. "A truly sua sponte reconsideration violates neither the letter nor the spirit of CPL 190.75 . . . [as] there is no possibility of prosecutorial overreaching." Only where a Grand Jury has undertaken "a self- initiated reconsideration" of its prior action may the prosecutor resubmit charges without judicial authorization. This Court has been clear that a "prosecutor may not unilaterally intervene in the proceedings in any manner which causes or contributes to the Grand Jury's decision to reconsider" a dismissal ( Montanez, 90 NY2d at 694-695 [emphasis added]).

Here, the People argue that the colloquy between the prosecutor and the Grand Jury, concerning the failure of the grand jurors to come to a decision "either way," signaled the Grand Jury's openness to the reception of further evidence. The People contend that the foreperson's communication with the prosecutor was an obvious indicator that the Grand Jury was in need of assistance. This argument is unavailing as the rule has never been that leave of court is excused where a Grand Jury appears to be in need of additional evidence; the Grand Jury must independently request such reconsideration.

Prudence suggests that we should not broaden the sua sponte exception to include implied requests by a Grand Jury or anything short of a self-initiated demand for further evidence. Such a rule would conflict with the policies underlying CPL 190.75, leaving great potential for prosecutors to get more than "one bite at the apple" ( Montanez, 90 NY2d at 693). The statute provides that a court may grant one resubmission only ( see CPL 190.75 [3]). Allowing unauthorized resubmissions on the presumption that the Grand Jury seemed open to new testimony will render ineffectual this statutory limitation.

Moreover, such resubmission disregards the District Attorney's role as a legal advisor to the grand jurors in their proceedings. As the statutorily designated legal advisor of the Grand Jury ( see CPL 190.25 [6]), "the prosecutor performs dual functions: that of public officer and that of an advocate" ( People v Huston, , 88 NY2d 400, 406 [1996]). These responsibilities include "'the prosecutor's duty of fair dealing'" ( Huston, 88 NY2d at 406 [citation omitted]).

Where a prosecutor has instructed the Grand Jury on the law and the Grand Jury, after deliberations, is unable to indict on the completed case before it, fairness suggests that the prosecutor must seek judicial permission before volunteering additional evidence. This is especially true where, as here, the evidence is in the form of a witness, who was known to the prosecutor when the charges were initially submitted, and the Grand Jury had exercised its power to request a witness during the first presentation. By permitting an unauthorized resubmission on the ground that the Grand Jury appeared open to further evidence, the majority holding would allow prosecutors to easily circumvent the statutory command of a single presentation and the requirement of leave of court for a second submission ( see CPL 190.75 [3]). This conclusion undermines the policy of curbing potential prosecutorial excess embodied in CPL 190.75 (3), and should be rejected.

Applying the sua sponte rule, that judicial authorization is not required to resubmit charges where the Grand Jury has engaged in "a self-initiated reconsideration" of its prior dismissal ( Montanez, 90 NY2d at 694), I conclude that the prosecutor's introduction of new evidence and resubmission of the charges here violated CPL 190.75 (3). The People concede that the assistant in this Grand Jury proceeding has no detailed recollection of her conversation with the foreperson. Neither the assistant nor the foreperson testified at the hearing held by Supreme Court on this matter. The sole record evidence is the colloquy between the prosecutor and the jurors. After stating on-the-record that the grand jurors could not "come to a decision either way," the prosecutor instructed the Jury as follows:

"At this time I'm asking you to cease deliberations on this case at this time and I will attempt to bring in additional witnesses and give you additional testimony regarding the case of The People of the State of New York versus Lenworth Aarons and at that time sometime next week I will ask you to consider these charges again"

(emphasis added).

Nothing in the prosecutor's statement suggests that the Grand Jury, having failed to indict, made an independent request to hear additional testimony. On the contrary, in the circumstances presented, the prosecutor's direction that the Grand Jury cease deliberations so that she could "attempt to bring in additional witnesses" indicates that she initiated the introduction of further evidence. While the prosecutor requested an on-the-record affirmation from the foreperson as to the Grand Jury's failure to vote a true bill, she sought no such affirmation for her resolve to seek more evidence and "ask [the Grand Jury] to consider these charges again." The prosecutor decided to take that course on her own initiative, apparently without input from the jurors and certainly without permission from the court.

As it was a Friday, she could have easily dismissed the grand jurors over the weekend and asked them to continue deliberating the following week. Instead, the prosecutor stopped deliberations, presented new evidence and recharged the jury on her own accord. It cannot be denied that, at the very least, her interference with the deliberations contributed to the Grand Jury's reconsideration of the charges. As a prosecutor cannot unilaterally intervene in the proceedings in any way that causes or contributes to the Grand Jury's decision to reconsider what is deemed a dismissal, the assistant's actions here violated CPL 190.75 (3), prohibiting the resubmission of charges to the Grand Jury without leave of court.

Accordingly, the order of the Appellate Division should be reversed and the order of Supreme Court dismissing the indictment reinstated.