People v. Abdullah

198 A.D.3d 1101

156 N.Y.S.3d 448

The PEOPLE of the State of New York, Respondent,

v.Yaqin ABDULLAH, Appellant.

109821, 110795

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 13, 2021

Decided and Entered: October 21, 2021

Pamela B. Bleiwas, Ithaca, for appellant.

P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), rendered October 10, 2017 in Albany County, convicting defendant following a nonjury trial of the crime of burglary in the second degree (two counts), and (2) by permission, from an order of said court, entered December 19, 2018 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

On July 30, 2015, defendant was arrested for unlawfully entering an apartment in the City of Albany and touching the occupant's genital area over her clothing while she was asleep in bed. On August 4, 2015, the People presented three charges to a grand jury (hereinafter the first grand jury), alleging that defendant committed the crimes of burglary in the second degree as a sexually motivated felony, sexual abuse in the first degree and robbery in the third degree. The jury returned a "no bill" on the first count charging defendant with burglary in the second degree as a sexually motivated felony but took no action with respect to the other two counts. Defendant was released from custody the following day. On August 6, 2015, defendant was arrested a second time, this time for allegedly burglarizing the apartment of another individual in the City of Albany. On August 7, 2015, following the People's presentment to the second grand jury, he was indicted (hereinafter the first indictment) for a single count of burglary in the second degree. Defendant moved to dismiss the first indictment and Supreme Court granted the motion, finding that the People had failed, as a matter of law, to provide defendant with sufficient notice of the second grand jury proceeding, but granted the People leave to resubmit the charge.

In September 2015, despite a no bill having been issued by the first grand jury with respect to the July 2015 incident charging defendant with burglary in the second degree as a sexually motivated felony, the People filed an ex parte application seeking permission to resubmit a burglary in the second degree charge with respect to the same incident to a new grand jury – this time excluding the sexually motivated felony component – contending that the first grand jury had acted in an irregular manner. Supreme Court granted the application and permitted the People to resubmit the charge to a new grand jury. A third grand jury proceeding ensued and defendant was thereafter indicted (hereinafter the second indictment) for one count of burglary in the second degree and one count of sexual abuse in the first degree related to the July 2015 incident and one count of burglary in the second degree related to the August 2015 incident. Defendant moved to dismiss the second indictment on the ground that the third grand jury proceeding and second indictment were defective, but the motion was denied.

In November 2015, defendant filed an omnibus motion seeking, among other things, dismissal of the second indictment on the ground that the People failed to comply with CPL 190.75 when it resubmitted the charges to the third grand jury. Supreme Court granted the motion with respect to count 2 of the second indictment charging defendant with sexual abuse in the first degree, finding that the People were required to seek court authorization before resubmitting this charge to a new grand jury, and denied the motion with regard to the two remaining burglary counts. Defendant thereafter pleaded guilty to both counts of burglary in the second degree; however, Supreme Court granted defendant's subsequent motion to withdraw the plea. Defendant then again moved to dismiss the two remaining counts, arguing, among other things, that the People failed to comply with CPL 190.75 when it resubmitted the charges to the third grand jury, but Supreme Court denied the motion, explaining that resubmission of the July 2015 burglary charge was appropriate because the People's ex parte application had presented a different theory of the case.

In October 2016, defendant once again pleaded guilty to two counts of burglary in the second degree but, in December 2016, Supreme Court again granted defendant's motion to withdraw his plea. Defendant thereafter waived his right to a jury trial and, following a two-day bench trial, Supreme Court found defendant guilty of two counts of burglary in the second degree. He was subsequently sentenced, as a second felony offender, to two concurrent prison terms of 14 years, to be followed by five years of postrelease supervision. Defendant's subsequent motion to vacate the judgment of conviction pursuant to CPL 440.10 was denied. Defendant appeals the judgment of conviction and, by permission, the denial of his CPL article 440 motion.¹

Initially, defendant's contention that his due process rights were violated based upon the ex parte nature of the People's application to resubmit the burglary in the second degree charge is unpreserved for our review (see People v. Rodriguez, 195 A.D.3d 1237, 1238, 148 N.Y.S.3d 538 [2021] ). In any event, it is also without merit (see People v. Washington, 125 A.D.2d 967, 969, 510 N.Y.S.2d 402 [1986], lv denied 69 N.Y.2d 887, 515 N.Y.S.2d 1036, 507 N.E.2d 1106 [1987] ). Additionally, although Supreme Court's order authorizing resubmission did not specify the exact charge that the People were authorized to resubmit, the People's ex parte application in this regard only sought to resubmit a single charge of burglary in the second degree with respect to the July 2015 incident – in lieu of the previously dismissed charge of burglary in the second degree as a sexually motivated felony – and, therefore, it is clear that Supreme Court granted the People's application solely with respect to that charge (see CPL 190.75[3] ).²

We agree with defendant, however, that Supreme Court should not have granted the People's ex parte application for leave to resubmit the charge of burglary in the second degree with respect to the July 2015 incident. Pursuant to CPL 190.75(3), where a grand jury has no billed or dismissed a charge, said charge "may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the [P]eople to resubmit such charge to the same or another grand jury" (see People v. Allen, 32 N.Y.3d 611, 613, 94 N.Y.S.3d 235, 118 N.E.3d 897 [2018] ; People v. Credle, 17 N.Y.3d 556, 557–558, 934 N.Y.S.2d 77, 958 N.E.2d 111 [2011] ). A trial court's authority to grant resubmission is not a pro forma or ministerial act and "should be exercised sparingly and discriminately" ( People v. Dykes, 86 A.D.2d 191, 194–195, 449 N.Y.S.2d 284 [1982] ), as the dismissal of a charge by a grand jury is "entitled to great deference because [it] represent[s] a determination that the evidence was not of sufficient credible worth to warrant a prosecution" ( People v. Tomaino, 248 A.D.2d 944, 945–946, 670 N.Y.S.2d 950 [1998] [internal quotation marks and citation omitted]). Thus, the trial court should not authorize resubmission of a charge unless it appears, for example, "that new evidence has been discovered; that the [g]rand [j]ury failed to give the case a complete and impartial investigation; or that there is a basis for believing that the [g]rand [j]ury otherwise acted in an irregular manner" ( People v. Jones, 206 A.D.2d 82, 85–86, 618 N.Y.S.2d 319 [1994], affd 86 N.Y.2d 493, 634 N.Y.S.2d 38, 657 N.E.2d 1321 [1995] ; see People v. Ballowe, 173 A.D.3d 1666, 1667, 103 N.Y.S.3d 207 [2019] ; People v. Dykes, 86 A.D.2d at 195, 449 N.Y.S.2d 284 ).

Here, there is no dispute that the first grand jury no-billed the charge of burglary in the second degree as a sexually motivated felony with respect to the July 2015 incident, which is the functional equivalent of a dismissal (see People v. Aarons, 2 N.Y.3d 547, 555–556, 780 N.Y.S.2d 533, 813 N.E.2d 613 [2004] ). Notwithstanding, the People subsequently sought to resubmit a charge of burglary in the second degree based on the same July 2015 incident by simply removing the sexually motivated felony component when resubmitting the charge to the third grand jury.³ In their ex parte application, the People's sole basis for seeking resubmission was that the first grand jury had acted in an irregular manner. Notably, however, no irregularity is alleged with regard the first grand jury's vote to no bill the charge of burglary in the second degree...