People v. Barabash

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

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 exception. Moreover, the presentation of that recording impaired the integrity of the grand jury 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.