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PEOPEL v. DAVIS

Nos. 150, 151.

17 N.Y.3d 633 (2011)

2011 NY Slip Op 7474

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. MAKEDA DAVIS, Respondent. THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. FAYOLA McINTOSH, Respondent.

Court of Appeals of New York.

Decided October 25, 2011.

Attorney(s) appearing for the Case

Cyrus R. Vance, Jr. , District Attorney, New York City ( Susan Gliner and Alan Gadlin of counsel), for appellant in the first and second above-entitled actions.

The Freyberg Law Group, New York City ( Mark L. Freyberg and Joel G. Kosman of counsel), for respondent in the first above-entitled action.

Office of the Appellate Defender, New York City ( Lily Goetz,   Richard M. Greenberg and Joseph M. Nursey of counsel), for respondent in the second above-entitled action.

Judges CIPARICK, GRAFFEO, READ, SMITH and JONES concur with Judge PIGOTT; Chief Judge LIPPMAN in a separate concurring opinion in which Judges CIPARICK and JONES concur.

OPINION OF THE COURT

PIGOTT, J.

The primary issue on these appeals is whether the People's withdrawal of their case from the first grand jury presentation due to witness unavailability constituted the functional equivalent of a dismissal pursuant to CPL 190.75 and our holding in People v Wilkins (68 N.Y.2d 269 [1986]). We conclude that under the circumstances of...

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