| People v Miles |
| 2010 NY Slip Op 06430 [76 AD3d 645] |
| August 17, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v JarrodMiles, Respondent. |
—[*1] James D. Licata, New City, N.Y. (Lois Cappelletti of counsel), for respondent.
Appeal by the People from an order of the Supreme Court, Rockland County (Kelly, J.),entered November 18, 2009, which granted that branch of the defendant's omnibus motion whichwas, in effect, pursuant to CPL 210.35 (5) to dismiss the indictment.
Ordered that the order is reversed, on the law, that branch of the defendant's omnibus motionwhich was, in effect, pursuant to CPL 210.35 (5) to dismiss the indictment is denied, theindictment is reinstated, and the matter is remitted to the Supreme Court, Rockland County, forfurther proceedings.
Dismissal of an indictment pursuant to CPL 210.35 (5) is appropriate where the grand juryproceeding is defective in that it fails "to conform to the requirements of [CPL article 190] tosuch degree that the integrity thereof is impaired and prejudice to the defendant may result"(CPL 210.35 [5]; see 210.20 [1] [c]). "The exceptional remedy of dismissal. . . under CPL 210.35 (5) should . . . be limited to those instanceswhere prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimatedecision reached by the Grand Jury" (People v Huston, 88 NY2d 400, 409 [1996];see People v Ramirez, 298 AD2d 413 [2002]). "Typically, the submission of someinadmissible evidence will be deemed fatal only when the remaining evidence is insufficient tosustain the indictment" (People v Huston, 88 NY2d at 409).
Here, although the prosecutor improperly elicited testimony which constituted inadmissiblehearsay, the grand jury proceeding did not fail to conform to the requirements of CPL article 190to such a degree that the integrity thereof was impaired and, in view of the sufficiency of theindependent, admissible proof which supported the indictment, no prejudice to the defendantcould have resulted from the improperly elicited testimony (see CPL 210.20 [1] [c];210.35 [5]; People v Read, 71AD3d 1167, 1168 [2010]; People vWalton, 70 AD3d 871, 873 [2010]; People v Moffitt, 20 AD3d 687, 689 [2005]; cf. People vHuston, 88 NY2d at 409-411).
In light of the foregoing, we need not address the People's remaining contentions. Covello,J.P., Angiolillo, Leventhal and Austin, JJ., concur.