PEOPLE v. BARABASH (2005)

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

The PEOPLE, etc., appellant, v. Norman BARABASH and Douglas Allen, respondents.

Decided: May 02, 2005

HOWARD MILLER, J.P., GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, and STEVEN W. FISHER, JJ.

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 A.D.2d 741, 590 N.Y.S.2d 534).

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