People v. Clarke

210 A.D.2d 80, 620 N.Y.S.2d 29

Opinion

—Order of the Supreme Court, Bronx County (Fred Eggert, J.), entered on December 20, 1993, which granted defendant’s motion to dismiss the indictment, is unanimously reversed, on the law, and the indictment reinstated.

The issue on appeal is whether video-taped statements by the defendants that are played before the Grand Jury must be simultaneously transcribed by the stenographer pursuant to Judiciary Law § 325. We hold that the video tape played for the Grand Jury does not constitute "testimony” within the meaning of section 325; rather, it is an exhibit readily available for review making simultaneous transcription unnecessary to insure accuracy. Our conclusion is further supported by the fact that if the showing of the video tape did constitute "testimony,” the "testifying” defendant would be entitled to transactional immunity absent a waiver (see, CPL 190.40 [2]; People v D’Amico, 138 AD2d 943, lv denied 71 NY2d 967). Concur—Murphy, P. J., Sullivan, Rosenberger and Nardelli, JJ.