People v. Albergo

181 A.D.2d 683

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1992
• Status: Published

Opinion

— Appeal by the People from an order of the Supreme Court, Kings County (Egitto, J.), dated September 13, 1990, which granted the defendant’s motion to dismiss the indictment, with leave to re-present.

Ordered that the order is affirmed.

We do not agree with the conclusion of the Supreme Court, Kings County, that the prosecutor’s failure to instruct the Grand Jury on the defense of justification pursuant to Penal Law § 35.15 (2) was error or that the prosecutor did not meaningfully respond to the Grand Jury’s inquiries. However, we agree that the fundamental integrity of the Grand Jury proceeding was impaired and the defendant prejudiced (CPL 210.35 [5]) by the prosecutor’s omission of an instruction to the Grand Jury that in the event it voted a "No True Bill” by reason of the defense of justification pursuant to Penal Law § 35.30 as to any of the offenses submitted, it should not consider the lesser included offenses and should return a "No True Bill” as to all of the counts (see, People v Castro, 131 AD2d 771, 773; People v Hoy, 122 AD2d 618, 619). Failure to include such a charge was error mandating the dismissal of the indictment. Thompson, J. P., Sullivan, Harwood and Balletta, JJ., concur.