People v. Donofrio , 604 N.Y.S.2d 69 ( 1993 )

Order, Supreme Court, Bronx County (Emily Jane Goodman, J.), entered April 22, 1991, granting defendant’s motion to dismiss the indictment, reversed, on the law and the facts, the indictment reinstated, and the matter remanded for further proceedings.

Dismissal of the indictment was based upon the recollections of a 16-year old witness who alleged, fully six months after the filing of the indictment, that the prosecution had used intimidating tactics in preparing her for her grand jury appearance, and had demonstrated nonverbal disbelief during her testimony before that panel. The hearing on this matter was convened a year after the filing of the indictment because (1) the minutes of the grand jury proceedings shed no light on the allegations of prosecutorial misconduct before the panel, and (2) the prosecutor denied any such misconduct.

Most revealing was the witness’ testimony before the grand jury that she had been treated fairly by the District Attorney’s office. Despite all the alleged intimidation, she later told the Hearing Judge that she had felt completely free to speak her mind before the grand jury, that she had held nothing back, and that even at this late date she would not change any of her testimony before the panel. The only contradictory testimony of any substance to emerge from the later hearing was this witness’ statement that the victim had told her, a month after commission of the crime, that defendant had not committed the robbery, and that the victim had accused defendant simply to "get him in trouble”. That, it is suggested, falls under the category of impeachment evidence for trial, since the prosecution is under no obligation to present to the grand jury any and all evidence favorable to the accused (People v Lancaster, 69 NY2d 20, 30, cert denied 480 US 922).

We have no disagreement with the dissenters’ general observation that the prosecutor may, under certain circumstances, have an obligation to present evidence to the grand jury favorable to the accused. But we would note that the entire inquiry conducted here by Criminal Term was triggered by the prosecutor’s undertaking to discharge precisely that responsibility, and to procure the testimony of the subject witness, favorable to defendant, despite her considerable reluctance to appear at all.

Finally, defendant raised the issue at the hearing that the prosecutor may have tainted the integrity of the grand jury proceedings by uttering remarks in the corridor outside the grand jury room, during a break, expressing personally held beliefs as to the credibility of witnesses. Even if such inappropriate remarks were made, the possibility that any grand jury member might have overheard them, and was thereby adversely affected in discharging his responsibilities, is nothing more than rank speculation. Concur—Sullivan, J. P., Wallach and Ross, JJ.