| People v Barabash |
| 2005 NY Slip Op 03679 |
| Decided on May 2, 2005 |
| Appellate Division, Second Department |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 2, 2005
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
2004-07751
v
Norman Barabash and Douglas Allen, respondents. (Ind. No. 16/04)
Eliot Spitzer, Attorney-General, New York, N.Y. (Peter B. Pope
and Robin A. Forshaw of counsel), for appellant.
Hochheiser & Hochheiser, LLP, New York, N.Y. (Daniel A.
Hochheiser and Noah Teitelbaum of
counsel), for respondent Norman
Barabash.
David Goodman, Poughkeepsie, N.Y. (Steven Levine of
counsel), for respondent Douglas
Allen.
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).[*2]
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
2004-07751 DECISION & ORDER ON MOTION
The People, etc., appellant,
v Norman Barabash and Douglas Allen, respondents.
(Ind. No. 16/04)
Separate motions by the respondents on an appeal from an order of the County Court, Dutchess County, dated July 30, 2004, in effect, to unseal and release to them any and all minutes of the grand jury proceedings conducted in the above-entitled action. By decision and order on motion of this court dated January 21, 2005, the motions were held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motions, and the papers filed in opposition or relation thereto, this Court's in camera review of the grand jury minutes, and upon the argument of the appeal, it is
ORDERED that the motions are denied as academic.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court