The Motion to Inspect and Dismiss the Indictment

­A recent situation with a client leads me to discuss the “motion to inspect and dismiss”, the first real opportunity to persuade a judge to dismiss a case after a Grand Jury has voted to indict.

Upon request, the judge should review the Grand Jury transcripts and determine whether the presentation was “sufficient”, and whether anything “impaired the integrity of the Grand Jury presentation”.  Due to some backwards statutes, this occurs before your criminal defense attorney has had an opportunity to review the Grand Jury minutes.

It is plain however, that the judge is not going to review the presentation with the “single-minded devotion of counsel for the accused”.  So I often encounter judges approving the Grand Jury presentation even where I spot obvious and blatant errors and insufficiencies.  This leads me, as the defense lawyer, to bring a “Motion to Renew and/or Reargue”, urging the Court to look once again at the errors and insufficiencies that I spotted.

Sometimes judges overlook the most obvious errors.  In the particular case I am discussing here, there was simply no evidence at all to support fundamental elements of the crime charged.  The judge or her law secretary was simply asleep at the wheel- they just did not look up, or ignored, elements of the crimes charged.  Specifically, my client was charged with rape in the second degree, on a theory that the accuser was “incapable of consent”.  But “incapacity to consent” has its own very specific definition in the New York Penal Law, which requires that the accuser was “physically helpless”.  That again, has a very specific definition in the penal law, requiring that the accuser at the time of the alleged rape was “unconscious or for any other reason is physically unable to communicate an unwillingness to act”.  In this case, the evidence was simply not there at all.

The bottom line is that effective and aggressive criminal defense lawyers will carefully scrutinize the Grand Jury transcripts the moment they get them, make sure that every element of every crime is supported by the testimony, and promptly renew the motion to inspect and dismiss if there are inadequacies.  As New York’s highest court has held, “a judge’s impartial determination… is no substitute for the single-minded devotion of counsel for the accused”.  People v. Perez, 65 N.Y.2d 154, 160 (1985).