People v. Bartok

209 A.D.2d 530, 619 N.Y.S.2d 626

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1994
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered January 19, 1994, convicting him of grand larceny in the third degree (two counts) and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, the indictment is dismissed, with prejudice, and the matter is remitted to the County Court, Rockland County, for entry of an order in its discretion pursuant to CPL 160.50. No questions of fact have been raised or considered.

Inasmuch as the criminal prosecution against the defendant had commenced upon the filing of a felony complaint, his right to counsel indelibly attached thereupon (see, People v Samuels, 49 NY2d 218). Accordingly, his Grand Jury waiver of immunity, obtained without the benefit of counsel, or judicial inquiry (see, People v Mitchell, 61 NY2d 580; cf., People v White, 56 NY2d 110) was ineffective and caused the defendant to be cloaked in transactional immunity (People v Chapman, 69 NY2d 497; People v Valvano, 131 AD2d 615). Thus, the indictment must be dismissed (see, People v Higley, 70 NY2d 624). Bracken, J. P., Miller, Lawrence and Santucci, JJ., concur.