THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOSEPH THOMPSON SR DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, that part of the omnibus motion seeking to dismiss the indictment is granted and the indictment is dismissed without prejudice to the People to re-present any appropriate charges under counts 1, 3, 4, and 5 of the indictment to another grand jury.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted rape in the first degree (Penal Law §§ 110.00, former 130.35 [4]). Defendant contends that County Court erred in denying that part of his omnibus motion seeking to dismiss the indictment on the ground that the grand jury proceeding failed “to conform to the requirements of [CPL] article [190] to such degree that the integrity thereof [was] impaired and prejudice to the defendant” resulted (CPL 210.35 [5]). We agree. The People correctly concede on appeal that the prosecutor improperly presented to the grand jury a videotaped interview of the approximately 17-year-old victim conducted by a social services caseworker in lieu of her live testimony without adhering to any of the requirements of CPL 190.32, including the obligation to seek a court order authorizing the videotaping of an examination of the victim as a “special witness” (CPL 190.32 [3]). We agree with the parties that, under these circumstances, this error rendered the proceeding so irregular “that the integrity thereof [was] impaired and prejudice to ․ defendant may [have] result[ed]” (CPL 210.35 [5]; see CPL 210.20 [1] [c]; see generally People v Sayavong, 83 NY2d 702, 704 [1994]). We therefore conclude that the indictment must be dismissed without prejudice to the People to re-present any appropriate charges under those counts of the indictment not previously dismissed by the court, i.e., counts 1, 3, 4, and 5, to another grand jury (see People v Connolly, 63 AD3d 1703, 1705 [4th Dept 2009]).

In light of our determination, defendant's remaining contention is academic.

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court