THE LARGEST COLLECTION OF LEGAL JOBS ON EARTH
LawCrossing Legal Daily News Feature
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the New York Court of Appeals ordered a new trial of a criminal case when they found prosecutors had improperly withdrawn a count of a grand jury indictment.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
At the second trial, in 2008, the vehicular assault charge was sought to be withdrawn by the prosecutors.
In a unanimous decision
The attorney of the accused objected to the move
the Court of Appeals found
but Monroe County Judge Richard Keenan held that
that the power to withdraw grand jury counts is held
prosecutors have the authority to withdraw the
only by courts of law and prosecutors do not have
indictment.
that authority. In the case before the NY Court of Appeals, Monroe County prosecutors had argued that
The jury convicted James Extale of second-degree
prosecutors had the authority to withdraw whichever
assault and he was sent to prison for seven years.
indictment they deemed fit. In 2010, the Fourth Department affirmed the conviction Judge Robert Smith noted on the issue that “Whether
and held that prosecutors “have broad discretion in
such a count should be dismissed at the prosecutor’s
determining when and in what manner to prosecute a
request is an issue to be decided by the court in its
suspected offender.”
discretion.” This line of thought has been reversed by the Court of Incidentally, this is the second time that a new trial is
Appeals on Tuesday establishing that it is the discretion
being ordered against James Extale, who had allegedly
of the court, whether to allow withdrawal of a grand
wounded a Rochester police officer with his pickup
jury indictment, and the only thing that a prosecutor
truck in 2004. James was found to be driving drunk.
might do is to request the court to decide on the matter.
The accused was found guilty and a grand jury indicted him in 2005 and sentenced him to 21 years in prison.
The Court of Appeals wrote, “Nothing in the text or legislative history of the Criminal Procedure Law
In 2007, the Appellate Division, Fourth Department,
expresses any intention to restore to prosecutors the
questioned and overturned two of the convictions
unilateral right to refuse to proceed on account of a
related to first-degree assault and first-degree
grand jury indictment.”
vehicular assault. The Appellate Division held that for the convictions to stand mental states of the accused
This authority of the prosecutors, known legally as nolle
needed to be proven and mens rea established beyond
prosequi, worked until 1881. Then state lawmakers
reasonable doubt.
abolished the power and handed over the discretion to the courts.
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