People v. Davis

Catterson, J. (dissenting).

Because, in my opinion, there was no procedural violation by the People in their withdrawal and subsequent resubmission of a case to the grand jury without leave of court, I would uphold the defendant’s conviction on two counts of assault in the first degree and one count of assault in the second degree. In this case, the defendant, Makeda Davis, and a second defendant, Fayola McIntosh,¹ disfigured a neighborhood acquaintance by slashing her face with razor blades. The defendant asserts a violation of CPL 190.75 (3) in that the People resubmitted her case to a second grand jury without leave of court, and so argues that her conviction must be vacated and the indictment dismissed.

The facts adduced at trial as to the assault are as follows: In the early hours of June 11, 2006, the victim, Lynn Walker, and the defendant argued at a Manhattan nightclub over a man the defendant claimed she had married. Subsequently, the defendant raised her hand and waved a razor blade in front of Walker’s face. When Walker hit back in an attempt to defend herself, the defendant struck her with the razor blade on the left side of her face. Walker felt the blade “dr[ag] down the side of [her] face” from her “scalp down the whole side of [her] temple” to the outer end of [her] left eye.” She then felt the blade move diagonally to the bottom of her left ear.

McIntosh also had a razor blade and struck Walker with it while the defendant continued her attack. At that point, Walker “couldn’t see what was going on anymore” because she “started bleeding heavily” and the skin that had been cut over her left eye was “peeling and dropping” so that it covered her eye.

One of the friends who was at the club with Walker testified at trial that she observed the defendant. and McIntosh cut Walker with razor blades. Heather Norden, a paramedic who subsequently arrived on the scene, testified that Walker’s injuries were “pretty gruesome,” and that Walker was “covered in blood” and had “deep” facial lacerations, with her skin split “wide open.” According to Norden, Walker received 40 stitches at St. Vincent’s Hospital. Walker testified that her injuries were very painful and that she had “bad” scars for almost a year after the incident. She further testified that, at the time of trial, the scars still looked bad to her.

The defendant also testified at trial, and denied cutting Walker’s face or encouraging anyone to cut Walker. The defendant further denied striking Walker. At the conclusion of the four-day trial, the jury found the defendant guilty on all counts as charged.

The defendant argues that her conviction should be vacated on the grounds that, inter alia, the People improperly resubmitted the case against her to a second grand jury without leave of court in violation of CPL 190.75 (3). Specifically, she contends that since the People’s case was essentially complete at the time that it was withdrawn from the first grand jury, the withdrawal constituted a dismissal of the charges, and thus the People were required to obtain leave to re-present the case to the second grand jury.

I disagree, and for the reasons set forth below would affirm the judgment of conviction. It is well established that pursuant to CPL 190.75 (3), “[w]hen a charge has been . . . 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.” However, it is equally well established that only certain withdrawals by the People are tantamount to a dismissal under the statute. (People v Wilkins, 68 NY2d 269, 273 [1986].)

In Wilkins, the Court held: “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.” (68 NY2d at 274.) The standard is the “extent to which the presentation had progressed—i.e., whether sufficient evidence had been presented for the prosecutor to ask for a vote.” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 190.75, at 141.) If “little evidence of criminal conduct ha[s] been presented, and there [is] no evidence linking defendant to the commission of the crime,” then the prosecutor need not seek judicial approval to resubmit the charges to a second grand jury after the matter is withdrawn from the first. (People v Gelman, 93 NY2d 314, 317 ]1999]; see also People v Rodriguez, 281 AD2d 375, 376 [1st Dept 2001], lv denied 96 NY2d 906 [2001].)

The Court of Appeals has noted that the prosecutor’s “presentation need not be complete for consideration equivalent to a dismissal to occur.” (Wilkins, 68 NY2d at 274.) Where the withdrawal takes place “near the end of the presentation of the evidence,” the grand jury may be deemed to have “heard and considered enough” to render the withdrawal the equivalent of a dismissal. (68 NY2d at 274-275; see also Matter of McGinley v Hynes, 75 AD2d 897 [2d Dept 1980], revd on other grounds 51 NY2d 116 [1980], cert denied 450 US 918 [1981].)

In Wilkins, the Court of Appeals held that the prosecutor’s withdrawal of the case from the first grand jury was the equivalent of a dismissal since, “as far as the prosecutor was concerned, all witnesses had testified, and all that was left was to instruct the Grand Jury on the law.” (68 NY2d at 275 [emphasis added].)

As a threshold matter, then, precedent does not support the majority’s view that the key factor in determining whether the presentation has progressed far enough is whether the People have presented sufficient evidence on which to indict any one defendant. Rather, progress should be measured by the People’s decision that they have presented all the witnesses and evidence they deem necessary to secure an indictment against a specific defendant or defendants.

In the instant case, in my opinion, the facts do not support the majority’s conclusion that the withdrawal by the People was tantamount to a dismissal: The prosecutor first appeared before the grand jury on June 20, 2006, just nine days after Walker was assaulted, to present the People’s case against Fayola McIntosh, not the defendant in the instant appeal. The Assistant District Attorney (ADA) submitted three felony charges, two counts of assault in the first degree (Penal Law § 120.10 [1], [2]) and one count of assault in the second degree (Penal Law § 120.05 [2]). The ADA immediately advised the grand jurors that, while they would hear from Walker that day, the case would be “continued.”

Walker then testified that she was assaulted by the defendant and McIntosh at the nightclub. In particular, Walker testified that the defendant had “swiped something at [her] face.” When the ADA asked Walker what exactly she had seen, Walker replied, “I really didn’t see exactly what it was. It was just some type of object in her hand.”

According to Walker, after defendant swiped the object at her face, she “grabbed [Walker’s] hair” and started “punching” her “on the left side of [her] face.” Walker then testified that McIntosh “came over” and started “hitting [her]” as well. Walker stated that she did not see anything in McIntosh’s hand. Next, Walker testified that after a crowd gathered, “[defendant] cut [her] hair” and Walker “felt a lot of blood running down [her] face.”

According to Walker, immediately after the incident, she went to the hospital and received 40 stitches to her forehead, the left side of her face, “behind [her] ear,” as well as a liquid stitch on her hand. Walker then took off her head scarf and showed the grand jury her injuries, specifically pointing to her “cut[s].” Photographs of Walker’s “cuts” taken the day .of the grand jury proceedings were submitted into evidence.

Walker was excused and no further evidence was presented. Three days later, Makeda Davis, the defendant, turned herself in and was arrested. Seven days later, on June 30, 2006, the last day of the grand jury’s term, the ADA advised the grand jurors that she was withdrawing the case due to “witness unavailability.”

Approximately four months later, in October 2006, the ADA, without requesting judicial leave, appeared before a second grand jury to present evidence in the case, this time against both the defendant and McIntosh. The same three felony charges from the first grand jury were submitted to the second grand jury.

Walker again testified about the assault and stated that defendant “swiped an object in front of [her] face.” When asked whether she could see what the object was, Walker replied, “Not really. I mean, it looked like some type of blade, but I couldn’t really see it because she did it real fast, like jumping at me.”

When the prosecutor asked Walker what she “fe[lt]” when she was being “struck,” Walker replied, “when [defendant] hit me on the side of my face, I just felt, like a drag ... It didn’t feel like she hit me. And that was it. I felt it kind of drag. And the same thing, really, ... on this side of my face when Fayola ran over.” Walker indicated that she “started getting a little blurry” and “pretty much started bleeding after that.”

The rest of Walker’s testimony was similar to her testimony before the first grand jury, except that she indicated that she had scarring rather than “cuts” and that her scars were still visible. The photographs of Walker’s injuries, taken nine days after the incident, were again admitted into evidence.

In addition to Walker’s testimony, two other witnesses testified before the second grand jury. Dr. Sandra Haynes, an attending physician at St. Vincent’s Hospital, testified that on the day of the incident she examined and treated Walker. Dr. Haynes indicated that she had reviewed Walker’s medical records pertaining to her treatment at St. Vincent’s, and the records were admitted into evidence. Dr. Haynes described Walker’s injuries and treatment, which included stitches, and testified that, with “a reasonable degree of medical certainty,” Walker’s lacerations “were consistent with injury caused by a sharp instrument.” When asked what the possible long-term effects were from those lacerations, Dr. Haynes replied that Walker would have “permanent scarring.”

Walker’s friend, Barbara Smith, also testified at the second grand jury proceedings that she observed the defendant and McIntosh cut Walker with razors. After the second grand jury presentation, both the defendant and McIntosh were indicted on the two counts of first-degree assault and the single count of second-degree assault.

In my view, the People are correct in asserting there was insufficient evidence for the first grand jury to consider in order to make a decision about essential elements of the crimes with which defendant was being charged. I depart from the majority’s determination that the type of extensive progress required by the Wilkins Court was made in this case. In Wilkins, the prosecutor had presented all of the People’s witnesses and was ready to charge the grand jury. In this case, the prosecutor made it quite clear from the very beginning that she could not present all her witnesses and that she would have to continue the presentation. Without the testimony of a medical expert, Dr. Haynes, and without the admission of victim’s hospital records, the People would have been hard pressed to establish the essential element of “serious[ ] and permanent ]” disfigurement required for assault in the first degree pursuant to Penal Law § 120.10 (2). Equally doubtful is the likelihood they would be able to establish that the defendant used a “dangerous instrument” pursuant to Penal Law § 120.10 (1) without the testimony of Walker’s friend who testified to seeing the razor blades.

I disagree with the majority that the victim’s testimony alone was sufficient to establish the essential elements of the crimes charged. Nothing in Walker’s testimony, including that the defendant swiped an object in front of her face, would necessarily lead to a finding that the defendant used a blade rather than, for example, that she was wearing a large ring that got in the way as she was raining blows on the victim. Further, the majority relies on People v Irwin (5 AD3d 1122 [4th Dept 2004], lv denied 3 NY3d 642 [2004]) to contend that photos taken nine days after the assault and depicting Walker’s sutured wounds were legally sufficient to establish that she sustained permanent disfigurement. I find the reliance is misplaced. The fact that in Irwin there was a photograph from which it could be inferred that the depicted sutured wounds would result in permanent scarring does not mean that the same necessarily would be or could be inferred from a photograph of Walker’s sutured wounds. Not all sutured wounds are equal. Not all sutured wounds necessarily result in permanent disfigurement, but rather that result depends on numerous factors such as the skill of a surgeon and the elasticity of an individual’s skin, as well as the depth, severity and location of the wound. A grand jury viewing “cuts” a mere nine days after the attack might not necessarily be convinced, however “gruesome” the cuts appeared so soon after the assault, that the damage would be permanent or protracted.² It is also a fact that where case law reflects findings of permanent disfigurement by the trier of fact, those findings are reached at trials which are usually held months, if not years, after the alleged assaults and where such finding depends in great measure on the fact that the scars are evident on the victim. (See People v Wade, 187 AD2d 687 [2d Dept 1992], lv denied 81 NY2d 894 [1993] [scars evident eight months after attack]; People v Allen, 165 AD2d 786 [1st Dept 1990], lv denied 76 NY2d 983 [1990] [scars evident two years after attack].)

In any event, in this case, it is apparent that the re-presentation had nothing to do with the abuse which CPL 190.75 (3) was designed to prevent, that is, forum shopping for a more amenable grand jury. The defendant now suggests that the prosecutor withdrew the case because “she was dissatisfied with the evidence” and “feared” the outcome of a vote. That suggestion is refuted, as the People assert, by the announcement at the start of the first grand jury presentation—before any evidence whatsoever was presented—that the case would be continued, which was before the People could glean any kind of reaction, positive or negative towards their case.

More recently, the Court of Appeals specifically rejected the notion that withdrawal would equate with dismissal “whenever the People present any evidence to a Grand Jury of criminal conduct.” (People v Gelman, 93 NY2d at 319.) In that case, the Court reiterated and clarified its holding in Wilkins by stating unequivocally that, in Wilkins, withdrawal was treated as a dismissal because “ The first presentation was, as far as the prosecution was concerned, complete’ and ‘all witnesses had testified.’ ” (Id., quoting Wilkins, 68 NY2d at 274-275 [some emphasis added].)

In other words, unlike the majority, I believe the view of the People should prevail as to whether a presentation to a grand jury is complete. In this case, there should have been no doubt that the view of prosecution was that its presentation was not complete against McIntosh, and certainly not against the defendant.

I further would reject the defendant’s argument that the indictment should be dismissed on the grounds the People breached their duty of fair dealing by failing to introduce in the second grand jury proceedings Walker’s purported “exculpatoiy” testimony from the first grand jury proceedings. Specifically, the defendant asserts that the prosecutor should have introduced testimony from the first grand jury proceeding that included the statement that defendant held “some type of object in her hand,” but Walker “really didn’t see exactly what it was”; and that defendant “did not touch [Walker] with [the object].”

I find that the testimony is not so radically different that its omission from the second grand jury presentation constitutes sufficient prejudice to the defendant such as to render the grand jury proceeding defective. (See CPL 210.20 [1] [c]; CPL 210.35 [5].) The statutory test for finding a proceeding defective is “very precise and very high” and is not satisfied by a showing of “mere flaw, error or skewing” of the evidence. (People v Darby, 75 NY2d 449, 455 [1990].)

Indeed, while the prosecutor “owes a duty of fair dealing to the accused and candor to the courts” (People v Pelchat, 62 NY2d 97, 105 [1984]), “[t]he People generally enjoy wide discretion in presenting their case to the Grand Jury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused.” (People v Lancaster, 69 NY2d 20, 25-26 [1986], cert denied 480 US 922 [1987] [citation omitted].)

Lastly, in my view, the defendant was not prejudiced by the People’s failure to disclose the purportedly exculpatory statements. Even without Walker’s testimony, the second grand jury had sufficient evidence to indict defendant. Indeed, Smith testified that she observed the defendant attacking Walker with a razor, and Dr. Haynes indicated that Walker’s lacerations had been caused by “a sharp instrument” and would result in permanent scarring.

Sweeny and Freedman, JJ., concur with Renwick, J.; Friedman, J.P., and Catterson, J., dissent in a separate opinion by Catterson, J.

Judgment, Supreme Court, New York County, rendered March 4, 2008, reversed, on the law, and the indictment dismissed, with leave to the People to apply for an order permitting resubmission of the charges to another grand jury.

1 . McIntosh’s motion to sever the indictment was granted. She was subsequently convicted, after a jury trial, of second-degree assault and sentenced to a term of five years.

2 . It is worth noting that, at trial, the defendant asserted legal insufficiency of evidence as to the severity of injuries on the basis that no medical testimony was presented to establish permanency of the scarring.