People v. Merhige

In People v. Merhige (40 AD2d 223, 338 NYS2d 1009 [3rd Dept 1972]), under facts almost identical to those in this case, the Court held that the People's failure to comply with the trial court's resubmission order premised upon a 10-day period could not result in dismissal of the superceding indictment because a court does not have discretion to grant the People leave upon any such constriction. The Court stated (at 224-225): "It is manifest that the court has the discretion either to allow or deny resubmission. If resubmission is permitted, however, it may be accomplished only as expressly provided in the statute, i.e., to the same or another grand jury. Consequently, it is our opinion that the court did not have the power to deviate from this explicit statutory provision and direct resubmission with a time limitation. Such a practice could unduly hamper and interfere with the operations of the office of the District Attorney. In some instances it could conceivably enable the defendant to go free without resubmission of the charge, when such was not the court's intention." The court notes that CPL 210.45 (9) sets forth a specific 45-day period for resubmission of charges to a grand jury, but only where there is a securing order in effect for an incarcerated defendant. The provision reads: "When the court dismisses the entire indictment but authorizes resubmission of the charge or charges to a grand jury, such authorization is, for purposes of this subdivision, deemed to constitute an order holding the defendant for the action of a grand jury with respect to such charge or charges. Such order must be accompanied by a securing order either releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the sheriff." (CPL 210.45 9.)