SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

907 

KA 13-02206 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

GILBERTO LOPEZ, DEFENDANT-APPELLANT. 

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Onondaga County Court (Anthony F.

Aloi, J.), rendered January 30, 2013. The appeal was held by this

Court by order entered May 6, 2016, decision was reserved and the

matter was remitted to Onondaga County Court for further proceedings. 

The proceedings were held and completed. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: We previously held this case, reserved decision, and

remitted the matter to County Court to rule on defendant’s motion to

dismiss the indictment based on an alleged violation of CPL 190.75 (3)

(People v Lopez, 139 AD3d 1381). The basis of defendant’s motion is

his allegation that the People sought an indictment from the grand

jury on only one charge, for criminal possession of a controlled

substance in the third degree (Penal Law § 220.16 [1]), which stemmed

from defendant’s alleged possession of heroin during a traffic stop

(hereafter, traffic stop charge). Defendant also alleged in his

motion that the People withdrew from the consideration of the grand

jury two other charges, i.e., criminal sale of a controlled substance

in the third degree (§ 220.39 [1]) and criminal possession of a

controlled substance in the third degree (§ 220.16 [1]), which stemmed

from defendant’s alleged sale of heroin to an individual in a gas

station parking lot (hereafter, criminal sale charges). Defendant

contended that the withdrawal of the criminal sale charges constituted

an effective dismissal thereof, and that the People were therefore

required to obtain authorization of the court to re-present those

charges to another grand jury. Inasmuch as the People failed to

obtain such authorization before presenting the criminal sale charges

to a second grand jury, the indictment was rendered jurisdictionally

defective. Upon remittal, the court denied the motion. 
-2- 907 

KA 13-02206 

Contrary to defendant’s contention, the court properly denied the

motion. We agree with defendant that, had the People actually

withdrawn from the first grand jury consideration of the criminal sale

charges that it had presented, such withdrawal would have constituted

the functional equivalent of a dismissal of those charges under People

v Wilkins (68 NY2d 269, 274). The minutes from the first grand jury,

however, do not support the allegations in defendant’s motion. Those

minutes make clear that, although the People presented the first grand

jury with evidence of both the traffic stop and the criminal sale,

they asked the first grand jury to consider only the traffic stop

charge. We conclude that asking the first grand jury to consider only

the traffic stop charge did not constitute the withdrawal of the

criminal sale charges and the functional equivalent of their

dismissal. Although the first grand jury heard some of the facts

underlying the criminal sale charges, they never considered the

criminal sale charges, and “ ‘the extent to which the grand jury

considered the evidence and the charge[s]’ ” is the “key factor” in an

analysis “whether an unauthorized withdrawal of [charges] must be

treated as a dismissal” (People v Gelman, 93 NY2d 314, 319; see

Wilkins, 68 NY2d at 274; see also People v Davis, 17 NY3d 633, 638). 

Indeed, there is no indication in the first grand jury minutes that

the grand jury was even aware of the existence or possibility of the

criminal sale charges, and the Court of Appeals has made clear that, 

“ ‘[b]efore a grand jury may be said to have acted upon a charge,

there must be some indication that it knew about it’ ” (Wilkins, 68

NY2d at 274). Moreover, “[t]here is no evidence in this record that

would raise the primary concern of . . . Wilkins, namely that the

People withdrew [the criminal sale charges] in order to present [them]

to a more compliant grand jury” (Davis, 17 NY3d at 639). The People’s

decision not to present the criminal sale charges for the

consideration of the first grand jury is not “ ‘fundamentally

inconsistent with the objectives underlying CPL 190.75’ ” (Davis, 17

NY3d at 638, quoting Gelman, 93 NY2d at 319), and we therefore

conclude that this case does not present those “ ‘limited

circumstances’ ” to which the holding of Wilkins applies (id.). 

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court