THE PEOPLE &C., RESPONDENT, v. GREGORY GELMAN, APPELLANT.

93 N.Y.2d 314 (1999).
May 11, 1999

[99 NY Int. 0076]
Decided May 11, 1999

99 N.Y. Int. 0077.
May 11, 1999

WESLEY, J.:

The primary issue on this appeal is whether a prosecutor's withdrawal of a case from a Grand Jury should be deemed a dismissal requiring judicial intervention before the case may be submitted to another Grand Jury ( see, CPL 190.75). In People v Wilkins (68 NY2d 269), this Court held that withdrawal of charges after the People's presentation wascomplete was the equivalent of a Grand Jury dismissal. In contrast to Wilkins, here little evidence of criminal conduct had been presented, and there was no evidence linking defendant to the commission of the crime. Under these circumstances, the People were not required to seek judicial approval to resubmit the charges to a second Grand Jury panel after the matter was withdrawn from the first.

Defendant was convicted after a bench trial of first degree arson for hiring four men to set fire to a Manhattan apartment building he owned. All four testified at trial that defendant had agreed to pay $5,000 for the arson. Defendant had been involved in a number of disputes with his tenants over the condition of the building and he wanted the tenants removed to allow conversion of the building into condominium units. An expert testified that the building was worth more as an unoccupied shell awaiting renovation than it was fully occupied with rent–controlled leases.

When the People presented evidence in connection with the charges to the first Grand Jury, only two witnesses were called. One, a firefighter who fought the blaze, testified that there had been a fire in the building and that bolt cutters were found near the building. The second witness, a fire inspector, testified that the fire did not result from natural or accidental causes. Neither witness identified defendant as the owner of the building or linked defendant in any way to the fire. Followingthis testimony, the People told the Grand Jurors that one of their witnesses would not be available during the Grand Jury's prescribed term. The Assistant District Attorney asked that the Grand Jury extend its term, solely for the purpose of hearing additional evidence in this case. The Grand Jury voted not to do so. The People then withdrew the case, and without judicial approval resubmitted it (calling 16 witnesses) to a new Grand Jury.

Defendant moved to dismiss the indictment on the ground that the charges were improperly submitted to the second Grand Jury without court approval in violation of CPL 190.75 and People v Wilkins ( supra). The trial court denied the motion, finding the prosecutor's action in this case consistent with Wilkins. The Appellate Division affirmed, holding that the People's withdrawal of the charges after presenting only "minimal" evidence could not be deemed "the equivalent of a dismissal" under Wilkins (240 AD2d 181, 182). A Judge of this Court granted defendant's application for leave to appeal, and we now affirm.

We begin with the statute. CPL 190.75 provides that, if the evidence before the Grand Jury is insufficient to establish defendant's commission of a crime, or fails to provide reasonable cause to believe defendant committed a crime, the Grand Jury must dismiss the charge. Subdivision three of that section provides that a charge dismissed by the Grand Jury pursuant to the statute may only be re–presented once, and thenonly with leave of Court. ^[n.1] Here, there was no dismissal of the charges by the Grand Jury, but rather a withdrawal of the charges by the People. On its face the "two bite rule" embodied in the statute does not apply. In People v Wilkins, however, we held that, under limited circumstances, withdrawal of the charges after the People have presented evidence to the Grand Jury may be deemed a dismissal within the meaning of CPL 190.75.

The Court in Wilkins focused on the policies underlying the statute. CPL 190.75 (derived from former section 270 of the Criminal Code) was enacted in order to curtail the "grave abuses" resulting from the common law rule that allowed a prosecutor to resubmit a charge repeatedly to successive Grand Juries after the same charge had been dismissed by their predecessors ( see, Commission Staff Notes to CPL 190.75; People v Wilkins, supra, 68 NY2d, at 273; see also, People v Morris, ___ NY2d ___). The Court noted that "[t]he comprehensive statutory scheme regulating Grand Jury proceedings does not contemplate the termination of deliberations without some action by the Grand Jury" ( People v Wilkins, supra). Allowing a prosecutor to withdraw a case at will would undermine the statutory scheme, and permit the abusesprevalent under the common law rule. The People could simply "withdraw[] all but 'open and shut' cases and resubmit[] them after further preparation or a more compliant Grand Jury is impaneled" ( id., at 275).

Wilkins was based on the determination that, under limited circumstances, the withdrawal of a case is fundamentally inconsistent with the objectives underlying CPL 190.75. Defendant and amicus curiae, New York State Association of Criminal Defense Lawyers, urge that we now expand Wilkins and equate a withdrawal with a dismissal whenever the People present any evidence to a Grand Jury of criminal conduct. While such a rule has the benefit of clarity and easy application, its fatal flaw is that it is unsupported by the logic and scope of Wilkins. In Wilkins we noted that "the key factor in determining whether an unauthorized withdrawal of the case must be treated as a dismissal is the extent to which the Grand Jury considered the evidence and the charge" ( see, People v Wilkins, supra, 68 NY2d, at 274 [emphasis added]). In Wilkins, "the first presentation was, as far as the prosecution was concerned, complete" and " all witnesses had testified" ( id., at 274–275 [emphasis added]). Thus the Court in Wilkins determined that the proceedings before the Grand Jury had progressed to the point that the Grand Jury had fully considered the evidence and the charge. Withdrawal under those circumstances constituted dismissal.

It is clear that on this record the Grand Jury did not"consider the evidence and the charge" against defendant. The People presented only two witnesses, neither of whom linked defendant to the commission of this crime. Indeed, the witnesses, at best, provided only an inferential link to criminality. The defendant was never identified as the owner of the building and no evidence of any possible criminality on his part was ever offered to the first Grand Jury. The case was withdrawn from the Grand Jury only because the People were unable to produce a necessary witness prior to the end of the Grand Jury's term. ^[n.2] The Grand Jury's refusal to extend its term cannot be equated to a disapproval of the People's case or manipulation of the Grand Jury process. The Grand Jurors simply voted to complete their service without considering this case. Under these circumstances, where only limited evidence had been presented, and the Grand Jury had not been given any opportunity to evaluate the evidence or charges against an identified defendant, the integrity of the Grand Jury proceedings was not impaired ( see, CPL 210.35[5]; People v Cade, 74 NY2d 410, 415). Withdrawal of the case was not tantamount to a dismissal under Wilkins.

One other issue raised by defendant merits some discussion. As the trial approached, defendant and his counsel disagreed over whether to proceed with a bench or jury trial. Defendant's counsel believed that defendant would not fare well with a jury that could possibly be entirely comprised of tenants; defense counsel recommended a bench trial to his client. A co–defendant and his attorney agreed with this assessment and waived a jury trial. Defendant, however, was steadfast in his desire for a jury. Following a pretrial conference in which the logistics of the coming proceedings were discussed, the Judge's law clerk remarked to defendant's counsel during a chance encounter in a hallway of the courthouse that he agreed that defendant would be better off with a bench trial, and that the Judge would certainly give him a fair trial.

That no promises as to either the determination of guilt or sentencing were made by the law clerk rest on undisturbed findings of fact. Defendant eventually agreed to waive a jury trial, executing the required written waiver and swearing that he had received no promises or inducements for agreeing to the waiver.

The law clerk's remarks to defense counsel were imprudent. Our inquiry, however, is limited to whether the claimed assertion renders defendant's decision to waive his right to a jury trial involuntary. It does not.

A promise of favorable treatment that is not fulfilledmay invalidate a defendant's waiver of his right to a jury trial if reliance on that promise is objectively reasonable ( cf., People v Selikoff, 35 NY2d 227; Mosher v Lavalle, 491 F2d 1346). Here, there was no promise of favorable treatment. Objectively viewed, at most there was a suggestion that the trial court would be a fair arbiter of the facts, and that this might be more than defendant could expect from a jury of his peers. There was no actual promise of favorable treatment, and any expectation that defendant or his counsel may have fostered in this regard simply was not reasonable. Under the circumstances, the remark did not render defendant's waiver involuntary.

We have examined defendant's remaining contentions, and find them to be either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be affirmed.

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Order affirmed. Opinion by Judge Wesley. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick and Rosenblatt concur.

Decided May 11, 1999

Notes

"3. When 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. If in such case the charge is again dismissed, it may not again be submitted to a grand jury."

2 The majority in Wilkins, in response to concerns raised by the dissent, did anticipate requests to the Grand Jury to extend its term to accommodate unavailable witnesses. The majority did suggest that should the Grand Jury, as it did here, deny the request to extend its term, leave for resubmission from the court would be appropriate. However, it did so in the context of a case –– unlike the one before us –– in which the Grand Jury had already crossed the Wilkins threshold.