Wendy G. Roberts, Public Defender, and
Fern S. Adelstein, Olean, for defendant.
Edward M. Sharkey, District Attorney, for plaintiff.
OPINION OF THE COURT
LARRY M. HIMELEIN, J. On or about April 26, 2003, defendant was arrested and charged with driving while intoxicated (DWI) as a felony in the presented to the new grand jury. Further, if speedy trial were an issue, a concern the court raised at oral argument, the DWI case could have been presented on July 10, 2003 and the murder charge to the next grand jury; an indictment charging murder is not subject to a statutory speedy trial dismissal (see CPL 30.30 [3] [a]). Moreover, once the defense served notice that defendant wished to testify on the murder charge, the court does not see any legitimate reason, and the District Attorney has not asserted one, to present nonjoinable charges to the same grand jury on the same date. Nonetheless, the court cannot conclude that dismissal is mandated. In New York City, where People v Jorge was decided, multiple grand juries sit at the same time. It is easy to simply present separate cases to separate grand juries. In Cattaraugus County, a single grand jury sits for approximately three months and generally hears cases on a weekly or biweekly schedule. If a defendant was charged with a number of nonjoinable offenses, all of which were governed by the six-month readiness period of CPL 30.30 (1) (a), must the District Attorney present each nonjoinable offense to a different grand jury and hope that the exceptional circumstances period of CPL 30.30 (4) (g) will be found to be applicable? While that is not the case here, the court can envision the unintended consequences of a holding that it is prejudicial per se to present nonjoinable offenses to the same grand jury. As noted earlier, despite the District Attorney's noticing of both cases for the same date, it appears that only the murder case was presented on July 10, 2003. However, defendant was unaware of that because the District Attorney did not respond to his attorneys' letter of July 7, 2003. Because the defense was kept in the dark about whether both cases were going to the grand jury at the same time, it is of no practical importance that they were not. Nonetheless, while the court is not at all comfortable with the procedure followed here, the motion to dismiss is denied.