CAL in the Courts

Client's Conviction Reversed, New Trial Ordered


On July 6, 2017, the Appellate Division reversed, in a 4-1 decision, our client’s first-degree manslaughter conviction and ordered a new trial, stemming from a violation of CPL 190.75(3), as elucidated by People v. Credle, 17 N.Y.3d 556 (2011).  People v. Allen,152 A.D.3d 401 (1st Dept. 2017).  Initially, the prosecution sought our client’s indictment for second-degree murder as well as lesser included offenses, including the manslaughter charge.  When the grand jury indicted on the other charges but “hung” on the murder charge, the prosecution failed to seek judicial permission, required by CPL 190.75(3), before resubmitting the murder charge to another grand jury and obtaining a separate indictment for it.  After the court denied defense counsel’s motion to dismiss the murder indictment, our client proceeded to trial on the two, now consolidated, indictments.  Ultimately, the jury acquitted him of murder but convicted of manslaughter.  On appeal, both the Appellate Division majority and dissenter agreed that our client had suffered a Credle violation respecting the murder charge.  The majority and dissent parted company on our client’s entitlement to relief, given the acquittal on the Credle-violative count.  The majority agreed with our argument, premised on People v. Mayo, 48 N.Y.2d 245 (1979), that the “looming presence” of the murder count — which was itself jurisdictionally defective and violated the state constitutional right to trial only upon a valid indictment — infected the entire trial, and may well have affected not only defense counsel’s trial strategy but the jury’s verdict.  Our client was represented by Susan H. Salomon.