People v. Duca

¶1Supreme Court erred in dismissing the indictment for legal insufficiency because the People established that defendant owned the house in which the contraband was seized. The court properly dismissed the indictment, however, on the ground that the Grand Jury proceeding was defective (see, CPL 210.20 [1] [c]). The prosecutor improperly ordered a sworn grand juror not to vote on defendant’s indictment. Only the court is authorized to remove a grand juror (see, CPL 190.20 [2] [b]). A prosecutor’s authority before a Grand Jury is limited to presenting evidence and advising on the law (see, CPL 190.55). Thus, we cannot join the majority in its approval of the prosecutor’s unilateral action in this case, which may invite certain mischief that the statute (CPL 190.20 [2] [b]) seeks to avoid by requiring the intervention of the court before a grand juror is removed. In our view, the prosecutor’s failure to seek court approval before removing a grand juror impaired the integrity of the grand jury proceeding and may have resulted in prejudice to the defendant (see, CPL 210.35 [5]; People v Wilkins, 68 NY2d 269, 276; People v Di Falco, 44 NY2d 482, 488; cf., People v Williams, 73 NY2d 84, 90-91). Accordingly, the order should be affirmed and the indictment dismissed. (Appeal from Order of Supreme Court, Monroe County, Cornelius, J.—Dismiss Indictment.) Present—Callahan, J. P., Doerr, Green, Balio and Lowery, JJ.