People v. Barabash

Appellate Division of the Supreme Court of New York

People v. Barabash

18 A.D.3d 474, 795 N.Y.S.2d 257, 2005 N.Y. App. Div. LEXIS 4841

Appellate Division of the Supreme Court of the State of New York·Decided May 2, 2005·Published·Cited by 7 cases

Opinion

Appeal by the People from an order of the County Court, Dutchess County (Hayes, J.), dated July 30, 2004, which granted those branches of the defendants’ respective omnibus motions which were to dismiss the indictment charging them with promoting prostitution in the third degree and promoting prostitution in the fourth degree.

Ordered that the order is modified, as a matter of discretion in the interest of justice, by adding a provision thereto granting leave to the People to represent the charges to another grand jury; as so modified, the order is affirmed.

We conclude that an audiotape recording played to the grand jury constituted inadmissible hearsay not subject to any excep[475] tion. Moreover, the presentation of that recording impaired the integrity of the grand juiy proceedings, resulting in prejudice to the defendants, thereby requiring dismissal of the indictment (see CPL 190.65 [1]; 210.20 [1] [c]; 210.35 [5]; People v Steans, 187 AD2d 741 [1992]). H. Miller, J.P., Krausman, Crane and Fisher, JJ., concur.

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Appeal by the People from an order of the County Court, Dutchess County (Hayes, J.), dated July 30, 2004, which granted those branches of the defendants’ respective omnibus motions which were to dismiss the indictment charging them with promoting prostitution in the third degree and promoting prostitution in the fourth degree.

Ordered that the order is modified, as a matter of discretion in the interest of justice, by adding a provision thereto granting leave to the People to represent the charges to another grand jury; as so modified, the order is affirmed.

We conclude that an audiotape recording played to the grand jury constituted inadmissible hearsay not subject to any excep[475] tion. Moreover, the presentation of that recording impaired the integrity of the grand juiy proceedings, resulting in prejudice to the defendants, thereby requiring dismissal of the indictment (see CPL 190.65 [1]; 210.20 [1] [c]; 210.35 [5]; People v Steans, 187 AD2d 741 [1992]). H. Miller, J.P., Krausman, Crane and Fisher, JJ., concur.

People v. Barabash, 18 A.D.3d 474, 795 N.Y.S.2d 257, 2005 N.Y. App. Div. LEXIS 4841 (N.Y. Ct. App. 2005).

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