Opinion
November 13, 1956
There was ample legal evidence before the Grand Jury to support both the original and superseding indictments, and the admission of hearsay and other legally inadmissible evidence to the extent charged is not sufficient to vitiate the indictments ( People v. Leary, 305 N.Y. 793, 796 and cases therein cited). In reviewing the sufficiency of an indictment the testimony before the Grand Jury must be taken as true, and it is not for the court to pass upon the credibility of the witnesses ( People v. Bob, 233 App. Div. 94, 96-97; People v. Sylvester, 269 App. Div. 985). The district attorney may assist, but he does not control the Grand Jury. It is an independent body capable of forming its own conclusions ( People v. Sweeney, 213 N.Y. 37, 45). While the assistant district attorney's handling of this case may be subject to criticism, it did not nullify the independent action by this Grand Jury, nor did it violate any of defendant's substantial rights. Order unanimously reversed, the motion to dismiss the indictments denied and both indictments reinstated.
Concur — Breitel, J.P., Botein, Rabin, Frank and Valente, JJ.