THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JAMES CARR DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (M. William Boller, A.J.), dated February 21, 2012.   The order denied the motion of defendant pursuant to CPL 440.10.

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

We nevertheless conclude that, contrary to defendant's contention, the People did not withdraw from consideration of the first grand jury the charges of murder and robbery, which would have constituted the functional equivalent of a dismissal of those charges under People v. Wilkins (68 N.Y.2d 269, 274).   Although the presentation had been completed (see id.;   cf.  People v. Davis, 17 NY3d 633, 636), we conclude that charging the grand jury with only one offense did not constitute the functional equivalent of the dismissal of the murder and robbery counts.   Indeed, although it was clear that defendant was a suspect in the victim's death, there was no direct evidence presented to the first grand jury tying defendant to those additional offenses.   Instead, “the witnesses, at best, provided only an inferential link to [those additional crimes]” (People v. Gelman, 93 N.Y.2d 314, 319).   Thus, we conclude that the “ ‘limited

circumstances' “ to which Wilkins applies are not present here (Davis, 17 NY3d at 638, quoting Gelman, 93 N.Y.2d at 319).

Frances E. Cafarell

Clerk of the Court