Opinion
April 8, 1988
Appeal from the Supreme Court, Onondaga County, Gorman, J.
Present — Denman, J.P., Boomer, Pine, Balio and Davis, JJ.
Judgment unanimously reversed on the law and indictment dismissed. Memorandum: Supreme Court granted defendant's motion to dismiss the indictment because the District Attorney failed to give defendant reasonable notice of the pendency of the Grand Jury proceeding, thus depriving defendant of his right to appear before the Grand Jury (see, CPL 190.50). Six days later the court, without giving any reason for doing so, reconsidered its decision and refused to grant an order dismissing the indictment. The conviction must be reversed. The mandatory language of CPL 190.50 (5) creates "a ministerial duty on the part of the court to dismiss an indictment obtained in violation of a defendant's right to appear before the Grand Jury" (Matter of Borrello v Balbach, 112 A.D.2d 1051, 1052).