Summary
In People v. Carter, 77 N.Y.2d 95, 99 (N.Y. 1990), the defendants requested that their convictions be declared invalid, because the prosecutor was not licensed. The defendants argued that the appearance of a nonlawyer, before the Grand Jury, made such proceedings defective, and accordingly, the Indictments against them should have been dismissed.
Summary of this case from Hamilton v. RoehrichOpinion
Argued October 17, 1990
Decided November 29, 1990
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Rose L. Rubin, J.
Andrea Hirsch and Philip L. Weinstein for appellant in the first above-entitled action. Steven A. Feldman and Arza Rayches Feldman for appellant in the second above-entitled action. Robert M. Morgenthau, District Attorney (Nikki Kowalski and Mark Dwyer of counsel), for respondent in the first and second above-entitled actions.
Defendants were tried jointly before a jury and convicted of drug-related crimes. The common question in their appeals is whether the convictions should be set aside as invalid because the Assistant District Attorney who handled the prosecution — both in presenting evidence to the Grand Jury which returned the indictments and later in conducting the actual trial — was not licensed as an attorney. They advance two arguments: (1) that the appearance before the Grand Jury of the nonlawyer Assistant District Attorney constituted the presence of an unauthorized person before the Grand Jury in violation of CPL 190.25 (3) requiring dismissal of the indictments as defective pursuant to CPL 210.20 (1) (c) and 210.35 (5); and (2) that, in any event, their prosecution by a person not duly admitted to practice as an attorney deprived them of a fair trial in contravention of their right to due process under the Federal and State Constitutions (US Const 14th Amend; N Y Const, art I, § 6). For reasons to be explained, we are not persuaded by either contention. Defendant Witherspoon also argues that the trial court committed a prejudicial error in admitting proof of uncharged crimes in violation of the rule of People v Molineux ( 168 N.Y. 264, 291-294). Because we find no basis for reversal in this or other points raised by defendant Witherspoon, the convictions in each case should be affirmed.
I
The particular drug transaction out of which defendants' convictions arose involved a sale of narcotics in Manhattan on January 28, 1987 to one Charles Humphrey. The main witness for the prosecution was Police Officer Higgins who, using highpowered binoculars, observed the sale which took place on the sidewalk at the southeast corner of West 123rd Street and Seventh Avenue. Higgins testified that he saw Charles Humphrey approach and talk to defendant Carter. Carter, he testified, took a small pink envelope from his pocket and handed it to Humphrey who, after apparently smelling the envelope, gave money to Carter. Humphrey put the envelope inside his coat and walked away. Carter then handed the money to defendant Witherspoon who had been standing about 10 feet away during the transaction. Higgins radioed the description of Humphrey and his location to Officer Hayes of the backup unit. Hayes arrested Humphrey at 124th Street and recovered the pink envelope from inside his jacket. In the envelope was vegetable matter which, chemical analysis later revealed, contained phencyclidine.
When Hayes returned to his backup post, Higgins resumed his surveillance of defendants. During the ensuing two hours, Higgins saw Carter and Witherspoon engage in what appeared to be transactions similar to the one involving Humphrey. Three to five people approached Carter, talked with him and gave him money in exchange for pink envelopes. On each occasion Carter gave the money he received to Witherspoon. After defendants' arrest, Officer Higgins identified them as the two men whom he had observed trading the envelopes for money.
Prior to the opening of trial the People had applied for an advance ruling on the admissibility of Higgins' testimony concerning defendants' dealings with other persons subsequent to the Humphrey sale. Over defendants' objection, the court determined that evidence of what amounted to "a continued course of conduct paralleling" the Humphrey sale was admissible "to establish that defendants were acting in concert". The evidence was accordingly admitted at trial.
The jury found both defendants guilty of criminal sale of a controlled substance in the fifth degree and, in addition, convicted defendant Witherspoon of criminal possession of a controlled substance, seventh degree. During the pendency of defendants' appeals to the Appellate Division and prior to argument, defense counsel learned of the unlicensed status of Daniel J. Penofsky, the Assistant District Attorney who presented the case to the Grand Jury and later represented the People as prosecutor in the trial. Penofsky, it appears, had never been admitted to the Bar although he had been prosecuting cases for 16 years. He was, however, a law school graduate.
At the time of his arrest Witherspoon was found to be in possession of a plastic envelope and a cigarette both of which contained phencyclidine. He, alone, was charged with criminal possession of a controlled substance.
Penofsky served as an Assistant District Attorney in Kings County for three years before becoming an Assistant District Attorney under the Special Narcotics Prosecutor, a position which he had held for 12 to 13 years. It was in this role as an assistant for the Special Narcotics Prosecutor, Sterling Johnson, that Penofsky handled the prosecution against defendants.
Although Penofsky's lack of admission to practice was not addressed in defendants' Appellate Division briefs, defense counsel raised the issue during oral argument and advised the Appellate Division that the identical question had been fully briefed in two other appeals involving Penofsky prosecutions scheduled to be argued in that court a few days later (People v Munoz and People v Sanchez-Medina). In its unanimous affirmance in the instant appeals, the Appellate Division did not address the Penofsky issue. In an opinion released approximately five weeks later (People v Munoz, 153 A.D.2d 281), however, the Appellate Division rejected the same arguments which defendants assert here. Distinguishing the situation where the prosecuting authority has no jurisdiction over the subject matter (see, People v Di Falco, 44 N.Y.2d 482), the Munoz court noted that the Grand Jury presentation was by a duly appointed Assistant District Attorney representing a prosecutor's office which did have jurisdiction and that this "authority [was] extended to Assistant District Attorneys as appointees" ( 153 A.D.2d 281, 283). Although the court decried Penofsky's flagrant conduct as amounting to a fraud on the appointing authority, it held that the fact that defendants had been prosecuted by a nonlawyer did not, without more, require a reversal. It observed that there "is currently no rule in New York to the effect that prosecution by an unadmitted lawyer entitles a defendant to an automatic reversal." (Id., at 284.) For reasons which will be explained, we agree with these conclusions of the Appellate Division in Munoz and Sanchez-Medina and hold that Penofsky's unadmitted status does not require a reversal in the instant appeals.
In its unanimous decision affirming the convictions before us, the Appellate Division addressed only issues unrelated to Penofsky. It rejected defendants' Molineux argument and held that Higgins' testimony concerning the subsequent exchanges was properly admitted on the issue of concerted action as well as on the question of defendants' identity. The court observed that "at trial the element of acting in concert was hotly disputed." (People v Witherspoon, 156 A.D.2d 306, 307.) Moreover, it pointed out, identity was in issue as well since defendants "were not arrested until two hours after the charged sale." (Id., at 308.) The court concluded that under "these circumstances, Officer Higgins' testimony was also admissible to establish that both defendants were under surveillance for the entire period after the sale and before the arrest." (Id., at 308.)
II
Defendants' primary argument is that because Penofsky was not a lawyer he could not properly serve as an Assistant District Attorney and, therefore, his presence before the Grand Jury was not authorized under CPL 190.25 (3) (a). It follows, defendants maintain, that because an unauthorized person was present in the Grand Jury room the proceedings were defective (see, CPL 210.35) and the indictments should have been dismissed (see, CPL 210.20 [c]). Defendants refer essentially to three cases in support of their position: People v Di Falco ( 44 N.Y.2d 482, supra), People v Dunbar ( 53 N.Y.2d 868) and People v Beauvais ( 98 A.D.2d 897). Their reliance on these cases is misplaced.
CPL 190.25 (3) (a) states:
"During the deliberations and voting of a grand jury, only the grand jurors may be present in the grand jury room. During its other proceedings, the following persons, in addition to witnesses, may, as the occasion requires, also be present:
"(a) The district attorney".
In People v Di Falco (supra), in holding that the Special Prosecutor was unauthorized to appear before the Grand Jury, we specifically noted that the prosecutor had "concede[d] that he lacked jurisdiction to prosecute the matter" ( 44 N.Y.2d, at 485). We held simply that "where a prosecutor lacks the requisite authority he is not a proper person before the Grand Jury and those proceedings conducted by him before the Grand Jury are defective." (Id., at 486.)
The prosecutor had exceeded his grant of authority (Executive Order No. 55 [9 N.Y.CRR 1.55]) which was "limited to those cases dealing with corruption relating strictly to the criminal justice process and [did] not embrace the judicial system in general or the civil justice system in particular" ( 44 N.Y.2d, at 485-486).
The converse of the Di Falco situation was presented in People v Dunbar (supra), where defendants claimed that a nonresident Special Assistant District Attorney's presence before the Grand Jury was unauthorized because no waiver of the residency requirement had been obtained in compliance with the Nassau County Administrative Code. Unlike Di Falco, there was no lack of the underlying prosecutorial jurisdiction and for that very reason the Court held that the indictment was not defective under CPL 210.35 (5). We stated: "[i]t is true that presentation to a Grand Jury by one who has no jurisdiction over the subject matter so impairs the integrity of the Grand Jury as to require dismissal of the indictment (People v Di Falco, 44 N.Y.2d 482). But there is no such lack of authority here. Whatever the other effects of a failure to comply with the waiver of nonresidence requirement, that omission does not affect the authority or power of an appointee to serve as Special Assistant District Attorney following appointment by the District Attorney and the taking of the oath of office." ( 53 N.Y.2d, at 871.)
The reasoning of Di Falco and Dunbar supports the decision in People v Beauvais (supra). There, the purported prosecuting agency — the office of the Regional Attorney for the Department of Environmental Conservation — was without any authority to represent the People before a Cortland County Grand Jury and, as in Di Falco, the necessary jurisdiction to prosecute was lacking. The attempt to vouch in the DEC attorney as an Assistant District Attorney pro hac vice for the purpose of making the presentation was of no effect and his appearance before the Grand Jury was, therefore, unauthorized (CPL 190.25). The indictment, accordingly, was properly dismissed.
Here, there was no lack of jurisdiction to proceed with the prosecution. Indeed, defendants make no challenge on this ground. The Special Narcotics Prosecutor and the Assistant District Attorneys assigned to his office were specifically authorized to appear before Special Narcotics Grand Juries such as the one which indicted defendants (see, Judiciary Law §§ 177-b — 177-d). Nor do defendants question that Penofsky was appointed Assistant District Attorney by the District Attorney of Kings County on February 26, 1973, that he duly executed the oath of office and that, thereafter, on August 27, 1976 he was regularly assigned as an Assistant District Attorney to the office of the Special Narcotics Prosecutor. Under CPL 1.20 (31), (32) the term "district attorney" includes any "assistant district attorney". Thus, Penofsky, as one holding the office of Assistant District Attorney, was by express statutory provision a person entitled to be in the Grand Jury room while evidence was being presented (see, CPL 190.25 [a]).
Defendants argue, nevertheless, that Penofsky's lack of admission to the Bar vitiated the authority to be present before the Grand Jury granted to him by virtue of his appointment as Assistant District Attorney. Thus, they maintain that, irrespective of the Special Narcotics Prosecutor's jurisdiction in the matter, Penofsky's presence in the Grand Jury room was that of an unauthorized person and the proceedings were, therefore, defective. We disagree.
Defendants contend that, unlike the absence of the waiver of nonresidency in Dunbar, Penofsky's unlicensed status was not a technical defect but a "serious, substantial defect". They point out that under Judiciary Law §§ 478 and 484 any practice of law by Penofsky — including presenting evidence before the Grand Jury — was unlawful. And they cite recent decisions where criminal convictions have been vacated due to the "serious and substantive" defect caused by defense counsel's fraudulent admission to legal practice (see, United States v Novak, 903 F.2d 883, 889-890 [2d Cir 1990]; People v Chin Min Foo, 144 Misc.2d 589).
But the argument misses the point. Whatever may be said about Penofsky's conduct, the fact remains that his unlicensed status did not, without more, undermine the underlying prosecutorial jurisdiction possessed by the Special Narcotics Prosecutor or affect his permission to be present before the Grand Jury as an Assistant District Attorney (see, CPL 1.20, [32]; 190.25 [3] [a]). In holding that the Assistant District Attorney's nonlawyer status did not result in a loss of jurisdiction so as to require a dismissal under CPL 210.35 (5) (see, People v Dunbar, 53 N.Y.2d 868, supra; People v Di Falco, 44 N.Y.2d 482, supra), we note that the purpose of the provision upon which defendant relies (CPL 190.25 [a]) is to ensure the secrecy of the Grand Jury proceedings (see, Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 190.25, at 215-216). The question of whether a duly sworn Assistant District Attorney has been admitted to the Bar has no bearing on whether his presence compromises the secrecy of the proceedings. Moreover, neither the Constitution nor any statute requires that a District Attorney or an Assistant District Attorney be an admitted lawyer (see, N Y Const, art XIII, § 13; art IX, § 1; County Law §§ 702, 930). Our conclusion as to the effect of Penofsky's presence as Assistant District Attorney in these circumstances does not, of course, suggest that "apparently anyone can present the People's case to the Grand Jury" (dissenting opn, at 108 [emphasis in original]). Cases such as People v Felder ( 47 N.Y.2d 287), United States v Novak (supra) and People v Chin Min Foo (supra), do not help defendants inasmuch as they turn on a criminal defendant's Sixth Amendment right to be represented by counsel at a critical stage of the proceedings, an issue obviously not involved here.
Defendants make additional arguments concerning the detrimental effect of Penofsky's conduct in appearing before the Grand Jury, pointing out that "it is universally regarded as a given" that "the District Attorney and Assistant District Attorneys be admitted to the Bar" (brief of appellant Carter, at 39). But these arguments are similarly unavailing. Concededly, the Special Narcotics Prosecutor had jurisdiction in the matter (see, People v Di Falco, supra, at 485-486) and Penofsky was present before the Grand Jury in his capacity as a regularly appointed Assistant District Attorney serving under the Special Narcotics Prosecutor. The sole question is whether the fact that Penofsky was not a lawyer, without more, negated the authority that his appointment as Assistant District Attorney conferred on him to be present in the Grand Jury room (see, CPL 1.20, [32]; 190.25 [3] [a]) so as to affect the prosecutorial jurisdiction. We conclude that it did not.
III
In their second challenge to the convictions, defendants contend that their prosecution by someone other than an attorney constituted a violation of their rights to due process of law under the Federal and State Constitutions (US Const 14th Amend; N Y Const, art I, § 6). They point to no aspect of the case where Penofsky's not being a lawyer assertedly deprived them of a fair trial or resulted in prejudice. Instead, they argue that a defendant's right to be prosecuted for a felony by a lawyer is fundamental — a right that has an historical basis and is protected by the Due Process Clauses in our Federal and State Constitutions. Because the right is fundamental, it is argued, it does not matter that they identify no specific prejudice.
No one disputes that defendants should have been prosecuted for these felonies by an Assistant District Attorney who was duly admitted to practice (see, e.g., ABA Standards for Criminal Justice, Prosecution Function, Standards 3-2.1, 3-2.3). Indeed, it was assumed by all concerned that Penofsky was admitted. But whether defendants should have been prosecuted by a licensed attorney is not determinative. The question is whether the fact of defendants' prosecution by a nonlawyer, standing alone, has deprived them of protections guaranteed by the Federal and State Constitutions.
Defendants cite no authority for the proposition that a defendant has a due process right to be prosecuted by a duly admitted attorney. We know of none. They quote language from cases such as Young v United States ex rel. Vuitton Fils ( 481 U.S. 787, 807) and People v Zimmer ( 51 N.Y.2d 390, 394) to demonstrate the undeniably broad discretion vested in public prosecutors and the extent of their control "over individuals' liberty and reputation" (People v Zimmer, supra, at 394). But neither Young nor Zimmer involved prosecutions by nonattorneys. Rather, the cases concerned prosecution by attorneys who had some financial or other personal interest in the outcome of the proceedings. And, as noted, cases such as People v Felder (supra) and United States v Novak (supra), are not helpful since they deal with the Sixth Amendment right of a defendant to be represented by a lawyer — not prosecuted by a lawyer.
The parties cite numerous cases dealing with the circumstances under which a defendant may properly be prosecuted by a nonlawyer or by someone other than a District Attorney for certain minor offenses (e.g., People v Van Sickle, 13 N.Y.2d 61; People v Czajka, 11 N.Y.2d 253; People v Vial, 132 Misc.2d 5; People v Birnberg, 112 Misc.2d 870; People v Vlasto, 78 Misc.2d 419). These cases, however, are not germane to defendants' contention that they have a fundamental, constitutional right to be prosecuted by a duly admitted attorney.
In sum, while we agree with the Appellate Division in Munoz that "the egregious nature of Penofsky's conduct" ( 153 A.D.2d, at 285) cannot be minimized, we accept that court's conclusion that, in the absence of prejudice, the fact that Penofsky was not a lawyer did not result in a deprivation of defendants' constitutional due process rights (US Const 14th Amend; N Y Const, art I, § 6).
IV
Finally, we conclude that the trial court properly exercised its discretion in permitting Higgins' testimony concerning defendants' conduct in exchanging pink envelopes with other persons for money after the Humphrey transaction. We agree with the Appellate Division that this proof was admissible on the issues of "acting in concert" and identity, both of which were disputed. As we have noted, "[w]hile 'acting in concert' is not one of the five Molineux exceptions, it has been said that those categories are merely illustrative, not exclusive (People v Calvano, 30 N.Y.2d 199, 205-206; Richardson, Evidence [Prince — 10th ed], § 170, p 140)." (People v Jackson, 39 N.Y.2d 64, 68; see, People v Alvino, 71 N.Y.2d 233, 241-243.)
We have examined the other arguments advanced by defendant Witherspoon and conclude that they present questions which, if not beyond our power of review or unpreserved for review, provide no basis for reversal.
Accordingly, in each case, the order of the Appellate Division should be affirmed.
Chief Judge WACHTLER and Judges SIMONS, KAYE and BELLACOSA concur with Judge HANCOCK, JR.; Judge TITONE dissents and votes to reverse in a separate opinion in which Judge ALEXANDER concurs.
In each case: Order affirmed.
It has been observed that a Grand Jury can indict anyone or anything — even a ham sandwich. Now, under the majority's holding, apparently anyone can present the People's case to the Grand Jury — even an unadmitted layperson masquerading as an attorney. Because this position makes a mockery of both the rules prohibiting legal practice by laypersons and the Grand Jury system itself, I dissent.
Wolfe, The Bonfire of the Vanities, at 603, quoting Wachtler, Ch. J.
In People v Di Falco ( 44 N.Y.2d 482, 488), after analyzing the history and import of CPL 190.25 (3) and 210.35 (5), this Court held that "where an unauthorized prosecutor conducts the [Grand Jury] proceedings, prejudice to the defendant may result and the indictment should be dismissed." The majority has declined to apply that holding here because, in its view, despite his deception, Assistant District Attorney Daniel Penofsky was not an "unauthorized" person. This conclusion is, in turn, based on the observation that "neither the Constitution nor any statute requires that a District Attorney or an Assistant District Attorney be an admitted lawyer" and on the further premise that the requirement of "authority" is satisfied whenever an individual purporting to fulfill the prosecutor's role has been appointed by a prosecutorial authority with subject matter jurisdiction over the controversy. The clear import of this analysis is that the District Attorney or Special Prosecutor in whose jurisdiction the prosecution falls may appoint anyone, regardless of his or her background and training, to conduct the Grand Jury proceedings. Although the majority disclaims that position (majority opn, at 105), its holding can be interpreted in no other way. For the following reasons, the Court's holding cannot be sustained.
Initially, the majority's startling suggestion that one need not be an attorney to qualify for the office of District Attorney or Assistant District Attorney is untenable. Until now, one would have thought that there was no need for an explicit provision in the Constitution or County Law §§ 702 and 930 requiring that the District Attorney and his appointed assistants be admitted attorneys (see, majority opn, at 105). The very term "district attorney" denotes an individual with the training and other required qualifications of an admitted attorney. More importantly, sections 478 and 484 of the Judiciary Law forbid unadmitted individuals from practicing law or appearing in any judicial proceeding (except in behalf of themselves). In fact, Judiciary Law § 485 makes it a crime to practice law without a license in this State. Since the activities performed by the People's representative in the Grand Jury room — e.g., eliciting testimony from witnesses and giving legal instructions — unquestionably constitute the practice of law, it seems obvious and beyond any question that the role cannot be filled by a layperson. Any other view would lead to the absurd conclusion that those charged with the duty of enforcing the criminal laws may, in the process, break them.
If there remains any doubt on the subject, it should be dispelled by the special exemptions in Judiciary Law §§ 478 and 484 for law students or recent law graduates who are "acting under the supervision of the state or a subdivision thereof or of any officer or agency of the state or a subdivision thereof, pursuant to a program approved by the appellate division." By these provisions, the Legislature has indicated that if a District Attorney wishes to appoint unadmitted individuals to act as Assistants, the appointments must be confined to a narrow class of laypersons with the statutorily defined qualifications. The precision with which the Legislature has expressed its wishes in Judiciary Law §§ 478 and 484 precludes any conclusion that a "regularly assigned" Assistant District Attorney may be someone other than a licensed attorney or a person likely to become licensed at the earliest possible point.
Specifically, the exemption applies to (1) "law students who have completed at least two semesters of law school" and (2) recent graduates of approved law schools who have taken the next Bar examination "immediately available" after they graduated or were notified of their failure on a prior examination and have not yet been notified on their failure to pass two Bar examinations (Judiciary Law §§ 478, 484).
Even if the majority did not rest its holding on the untenable proposition that Assistant District Attorneys need not be admitted lawyers, its ultimate conclusion in this case would be difficult to sustain. First, in this case the appointing authority, the Special Narcotics Prosecutor, was not even aware of Penofsky's status as an unadmitted layperson. Thus, contrary to the majority's assertion (majority opn, at 105), it cannot fairly be said that this imposter was acting with the "permission" of the Special Narcotics Prosecutor.
Indeed, the majority's statement that Penofsky's unlicensed status did not "affect his permission" to represent the People before the Grand Jury is undermined by the fact that the Special Narcotics Prosecutor fired him immediately after his fraud was revealed (see, People v Munoz, 153 A.D.2d 281, 283).
Second, there is no support in law or logic for the majority's suggestion that only a lack of subject matter jurisdiction will suffice to vitiate the prosecutor's authority under CPL 190.25 to appear before the Grand Jury. We held in People v Di Falco ( 44 N.Y.2d 482, 487, supra) that "the sound theory and policy of our criminal procedure [requires] that only the regularly constituted officials upon whom the law devolves the power, may officiate in aid of the Grand Jury" (id. [emphasis supplied]). While this analysis has been applied in the past only in cases involving a flaw in the presenting prosecutor's subject matter jurisdiction (People v Di Falco, supra; cf., People v Beauvais, 98 A.D.2d 897 [rejecting District Attorney's attempt to appoint a prosecutor without jurisdiction pro hac vice]), there is no reason to confine the Di Falco analysis to those situations.
Certainly, People v Dunbar ( 53 N.Y.2d 868), on which the majority heavily relies, did not suggest that Di Falco was intended to be read so narrowly. The Dunbar Court merely stated that the "effects of a failure to comply with the waiver of nonresidence requirement," whatever they might be, did not include the invalidation of an otherwise duly appointed Assistant's authority to act as the People's representative (id., at 871). The minor procedural defect in the Dunbar Assistant's appointment, however, cannot seriously be compared to the fundamental disqualifying circumstance in this Assistant's case — i.e., his inability to engage in the practice of law without simultaneously violating it. And, contrary to the majority's repeated assertions, this fundamental defect cannot be cured through the simple expedient of characterizing A.D.A. Penofsky as having "duly executed the oath of office," having been "regularly assigned as an Assistant District Attorney" or having been "regularly appointed" to that office (majority opn, at 104, 106). Plainly, a person cannot be said to have "duly" executed the oath of office, or to be "regularly appointed" to an office, when his or her performance of the duties associated with the office constitutes a blatantly criminal act.
Further, as was made clear in Di Falco, the central importance of the prosecutor's role in the Grand Jury process forecloses any argument that the presence of an unauthorized person in that capacity is a mere technical defect not rising to the level of an impairment of the integrity of the process. The Di Falco Court's observations on this point bear repetition ( 44 N.Y.2d, at 486-487, supra): "During the actual [Grand Jury] proceedings, the legal adviser of the Grand Jury is the District Attorney [represented by an appointed Assistant] * * *. The District Attorney [through an appointed Assistant] determines the competency of witnesses to testify * * * and must instruct the jury on the legal significance of the evidence * * *. He, in effect, determines what witnesses to present * * * and who should be excluded. These duties and powers * * * vest th[e District Attorney and the appointed Assistants] with substantial control over the Grand Jury proceedings, requiring the exercise of completely impartial judgment and discretion."
These factors, which were deemed sufficient to justify the invalidation of an indictment obtained by a prosecutor lacking subject matter jurisdiction (People v Di Falco, supra), furnish an even stronger case for the invalidation of an indictment obtained by a person who has never passed the Bar examination or been admitted to practice law in this State. Because of these serious defects in A.D.A. Penofsky's credentials, there can be no assurance that he exercised the considerable discretion that the law confers upon the District Attorney in a manner consistent with the controlling legal principles, the ethical precepts that constrain licensed attorneys and the sound judgment that licensed attorneys are presumed to possess (see generally, Jemzura v McCue, 45 A.D.2d 797 [recognizing dangers posed by legal practitioners not trained, examined and licensed for the work]; see also, People v Jones, 70 N.Y.2d 547 [conviction obtained by A.D.A. Penofsky reversed for failure to disclose Rosario material]).
The potential for mischief in these cases is not vitiated by the fact that Penofsky was acting under the aegis of the Special Narcotics Prosecutor's office, with its internal hierarchy of supervision by admitted attorneys. No matter how conscientious that office's supervisory staff may be, it cannot involve itself in the minutiae of the day-to-day decisions that must be made in connection with each prosecution. Similarly the availability of judicial review through a motion to inspect and dismiss is not a sufficient means of ensuring the regularity of the underlying process, since many of the activities of the Assistant District Attorney handling the Grand Jury presentation, including witness preparation and selection of the counts to be submitted, take place off the record and, consequently, routinely evade judicial scrutiny (see also, People v Minet, 296 N.Y. 315, 322).
Finally, even if the foregoing considerations were not sufficient to "impair the integrity of the proceeding" and to "create the possibility of prejudice" (CPL 210.35; People v Di Falco, 44 N.Y.2d, at 488, supra), those conclusions would necessarily follow from the serious threat to the secrecy requirement that flows from the presence of this unadmitted imposter. As was noted in Di Falco (supra, at 488), "[s]ecrecy is a vital requisite of Grand Jury proceedings" (accord, People v Minet, 296 N.Y. 315, 323). Indeed, it has been observed that the "blessings [that] accrue from the grand jury [exist] because its proceedings are secret" (People v Minet, supra, at 323). We concluded in Di Falco (supra, at 488) that the presence of a duly admitted prosecutor lacking subject matter jurisdiction so "infringe[d] upon the secrecy requirement" that the integrity of the proceeding was irreparably tainted, providing an additional reason for the indictment's dismissal (see also, People v Minet, supra, at 323-324). The risk of disclosure is obviously no less formidable when a charlatan such as Penofsky, who is not an "officer of the court" and is not accountable to any disciplinary authority, has been permitted in the Grand Jury room.
In the final analysis, I cannot concur in a rule that would permit the State to prosecute on the basis of an indictment obtained by a layperson because, in my view, such a rule compromises the integrity of the process and thereby undermines the public's ability to invest its confidence in that process. In theory, the Grand Jury is the bulwark in our legal system against oppressive and abusive conduct by the prosecutorial arm of government (see, People v Calbud, Inc., 49 N.Y.2d 389, 395-396; People v Iannone, 45 N.Y.2d 589, 594). In modern practice, however, it has come to be regarded, all too often, as a mere "investigative agent for the prosecutor." (Matter of Additional Jan. 1979 Grand Jury v Doe, 50 N.Y.2d 14, 23 [Wachtler, J., concurring].) As one court has observed, the Grand Jury frequently "operat[es] * * * as a rubber stamp * * * generally affirm[ing] what the prosecutor calls upon it to affirm * * * [and] indict[ing] or fail[ing] to indict as the prosecutor 'submits' that it should." (People v Colebut, 86 Misc.2d 729, 734.) Given the central importance of the prosecutor's role in the Grand Jury system, I do not believe that we can, or should, accept as a proper predicate for a criminal prosecution the work product of a Grand Jury whose "legal adviser" was a person such as Daniel Penofsky — who was never certified as competent by the State Board of Law Examiners, was never approved by the Committee on Character and Fitness and who himself had such little personal regard for the law that he was willing to perpetuate a 16-year fraud on both his employers and the public.
We demean the process as a whole when we hold, in essence, that the Grand Jury proceeding was not fatally tainted by either Penofsky's lack of admission to the Bar or his criminally fraudulent conduct. Accordingly, I would hold that the indictment under which defendant was prosecuted was defective and should have been dismissed.