Opinion
April 18, 1994
Appeal from the County Court, Westchester County (Cowhey, J.).
Ordered that the judgment is affirmed.
A reviewing court must give deference to the hearing court's ability to hear and weigh the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495; People v Paris, 138 A.D.2d 534) and, when there is support in the record, that determination should not be disturbed on appeal (see, People v Quang Ngoc Phan, 198 A.D.2d 309; People v Garafolo, 44 A.D.2d 86, 88). Here, the hearing court heard and credited the testimony of the Trial Judge, the Court Clerk, the prosecutor, and the defense counsel, each of whom believed the stenographic minutes to be in error. Upon the exercise of our factual review power, we are satisfied that the hearing court's determination was not against the weight of the evidence (see, CPL 470.15).
CPL 210.35 (5) provides that:
"A [G]rand [J]ury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 when * * *
"[t]he proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (emphasis supplied).
We find no merit in the defendant's argument that the presence of an "extra" Assistant District Attorney seated among the Grand Jurors amounted to the presence of an unauthorized person at the Grand Jury proceedings requiring dismissal of the indictment. The purpose of CPL 190.25 (3) (a) is to ensure the secrecy of the Grand Jury proceedings (see, Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 190.25, at 215-216; People v Carter, 77 N.Y.2d 95, 105, cert denied 499 U.S. 967). It is the status of being a duly sworn and regularly appointed Assistant District Attorney that confers the authority on the assistant to be present in the Grand Jury room, not the particular assistant's reason or function (see, People v Carter, supra, at 106; CPL 1.20). There is nothing in the record to indicate that there has been a violation of the secrecy of the proceedings or a showing of any prejudice thereby. Thus, the Assistant District Attorney's presence was not a defect in the proceedings and does not satisfy the statute's requirement that there be an "impairment of integrity" of the Grand Jury process in order to invoke the exceptional remedy of dismissal of the indictment (People v Darby, 75 N.Y.2d 449, 455; People v DeFreece, 183 A.D.2d 842; People v Skye, 167 A.D.2d 892). Nor has the defendant demonstrated the possibility of prejudice created by the presence of the second Assistant District Attorney by the defendant's speculative and conclusory claim that he felt coerced and nervous causing him to be prejudiced in the eyes of the Grand Jurors, since it would not be unusual for a defendant testifying before a Grand Jury to appear to be tense and nervous. Thus, the defendant has not satisfied the second prong of the test (see, People v Linares, 158 A.D.2d 296; People v Collins, 154 A.D.2d 901, 902).
We have considered the defendant's remaining contentions and find them to be without merit. Rosenblatt, J.P., Miller, Ritter and Pizzuto, JJ., concur.