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People v. Smith

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 16, 1979
72 A.D.2d 940 (N.Y. App. Div. 1979)

Opinion

November 16, 1979

Appeal from the Erie County Court.

Present — Simons, J.P., Hancock, Jr., Schnepp, Doerr and Moule, JJ.


Order unanimously reversed, motion denied and indictment reinstated. Memorandum: The People appeal from an order of County Court which dismissed an indictment accusing defendant of violation of section 1192 Veh. Traf. of the Vehicle and Traffic Law, subdivisions 2 and 5 in the first count and subdivisions 3 and 5 in the second count, operating a motor vehicle while in an intoxicated condition, a felony. County Court, after examining the transcript, found legally sufficient evidence was presented to the Grand Jury but dismissed the indictment because of the claimed failure of the District Attorney to provide the Grand Jury with appropriate instructions pursuant to CPL article 190. CPL 190.25 (subd 6) in part requires that "Where necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes." This provision must be read in conjunction with CPL 210.35 (subd 5) which declares Grand Jury proceedings to be defective if they fail to conform to the requirements of CPL article 190 "to such a degree that the integrity [of the proceedings] is impaired and prejudice to the defendant may result." (Emphasis supplied.) Here, the District Attorney instructed the Grand Jury by paraphrasing the statutory language of subdivisions 2, 3 and 5 of section 1192 Veh. Traf. of the Vehicle and Traffic Law. The instructions were sparse but fall far short of any omission which would impair the integrity of the Grand Jury proceedings, however. (See People v Percy, 45 A.D.2d 284, affd 38 N.Y.2d 806; People v Rallo, 46 A.D.2d 518, affd 39 N.Y.2d 217.)


Summaries of

People v. Smith

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 16, 1979
72 A.D.2d 940 (N.Y. App. Div. 1979)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ROBERT SMITH, III…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 16, 1979

Citations

72 A.D.2d 940 (N.Y. App. Div. 1979)

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