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LawCrossing Legal Daily News Feature

Only Judges Can, Prosecutors Cannot Withdraw Grand Jury Indictments by Surajit Sen Sharma

On Tuesday, the New York Court of Appeals ordered a new trial of a criminal case when they found prosecutors had improperly withdrawn a count of a grand jury indictment.


At the second trial, in 2008, the vehicular assault charge was sought to be withdrawn by the prosecutors.

In a unanimous decision

The attorney of the accused objected to the move

the Court of Appeals found

but Monroe County Judge Richard Keenan held that

that the power to withdraw grand jury counts is held

prosecutors have the authority to withdraw the

only by courts of law and prosecutors do not have


that authority. In the case before the NY Court of Appeals, Monroe County prosecutors had argued that

The jury convicted James Extale of second-degree

prosecutors had the authority to withdraw whichever

assault and he was sent to prison for seven years.

indictment they deemed fit. In 2010, the Fourth Department affirmed the conviction Judge Robert Smith noted on the issue that “Whether

and held that prosecutors “have broad discretion in

such a count should be dismissed at the prosecutor’s

determining when and in what manner to prosecute a

request is an issue to be decided by the court in its

suspected offender.”

discretion.” This line of thought has been reversed by the Court of Incidentally, this is the second time that a new trial is

Appeals on Tuesday establishing that it is the discretion

being ordered against James Extale, who had allegedly

of the court, whether to allow withdrawal of a grand

wounded a Rochester police officer with his pickup

jury indictment, and the only thing that a prosecutor

truck in 2004. James was found to be driving drunk.

might do is to request the court to decide on the matter.

The accused was found guilty and a grand jury indicted him in 2005 and sentenced him to 21 years in prison.

The Court of Appeals wrote, “Nothing in the text or legislative history of the Criminal Procedure Law

In 2007, the Appellate Division, Fourth Department,

expresses any intention to restore to prosecutors the

questioned and overturned two of the convictions

unilateral right to refuse to proceed on account of a

related to first-degree assault and first-degree

grand jury indictment.”

vehicular assault. The Appellate Division held that for the convictions to stand mental states of the accused

This authority of the prosecutors, known legally as nolle

needed to be proven and mens rea established beyond

prosequi, worked until 1881. Then state lawmakers

reasonable doubt.

abolished the power and handed over the discretion to the courts.


continued on back


LawCrossing Legal Daily News Feature

Extale’s prosecutors argued that since no mention of

The case is the People v. James Extale, New York State

that prohibition was made in the Criminal Procedure

Court of Appeals No. 35.

Law, 1970, the power was automatically reinstated to prosecutors.


Only Judges Can, Prosecutors Cannot Withdraw Grand Jury Indictments  

The New York Court of Appeals has ordered a new trial in the case of James Extale, who is alleged to have wounded a Rochester police officer...

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