PEOPLE v. FERNANDEZ (1999)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Carlos FERNANDEZ, Defendant-Appellant.

Decided: September 28, 1999

ROSENBERGER, J.P., WILLIAMS, RUBIN, SAXE and BUCKLEY, JJ.

Peter Hinckley, for Respondent. M. Sue Wycoff & Amy Donner, for Defendant-Appellant.

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 N.Y.2d 400, 410, 646 N.Y.S.2d 69, 668 N.E.2d 1362; People v. Darby, 75 N.Y.2d 449, 454-455, 554 N.Y.S.2d 426, 553 N.E.2d 974) 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.

MEMORANDUM DECISION.

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