People v. Fernandez

264 A.D.2d 661, 695 N.Y.S.2d 353, 1999 N.Y. App. Div. LEXIS 9530

Opinion

Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered October 2, 1996, convicting defendant, after a jury trial, of eavesdropping and possession of eavesdropping devices, and sentencing him to concurrent terms of 6 months, unanimously affirmed.

Defendant’s motion to dismiss the indictment was properly denied. This was not the “rare case” (see, People v Huston, 88 NY2d 400, 410; People v Darby, 75 NY2d 449, 454-455) where an impropriety in the Grand Jury presentation rose to the high level of impairment of the integrity of the Grand Jury process along with creation of the risk of prejudice, thereby requiring the extraordinary remedy of dismissal (CPL 210.35 [5]). On the contrary, the impropriety concerned a matter that was collateral to the inquiry of the Grand Jury, and defendant’s claim of prejudice rests on speculation.

The challenged portion of the court’s charge to the jury concerning Grand Jury proceedings, when read in the context of the entire charge, conveyed correct principles of law. Concur — Rosenberger, J. P., Williams, Rubin, Saxe and Buckley, JJ.