Upon inspection of the grand jury minutes, this court grants defendants' motions to dismiss the indictment pursuant to Criminal Procedure Law ("CPL") § 210.35 because, as set forth below, the integrity of the grand jury was impaired. Accordingly, the indictment is dismissed, with leave for the People to re-present to another grand jury.

At the outset of the presentation, the prosecutor told the grand jury that she would ask them to consider various counts of robbery as to each defendant. She continued:

This is all under the theory that the four individuals acted in concert with each other when the group approached the victim who was in his car. Two of the individuals in the group displayed what appeared to be firearms and demanded that the victim get out of the car. While this was happening some of the individuals got into the victim's car. One of them grabb[ed] the victim's phone from him. The rest of the group then got into the victim's car and drove away[,] thereby stealing the victim's car and the victim's phone.

The grand jury viewed surveillance footage depicting some of the alleged robbery and heard lay opinion testimony identifying the defendants in said footage. After being asked to consider robbery counts against the defendants, the grand jury asked the prosecutor to re-enter the grand jury chamber. They then told the prosecutor they had "questions as to the photo identifications," and asked if she could "remind [them] who the witness [was] . . . [and] who is who out of these four individuals." They stressed that they wanted to ensure "the right folks [were] being charged." The prosecutor reminded the grand jury that she could not testify, but nevertheless continued:

[Y]ou heard from Officer Leon Hayward who, if you remember, testified that he is a school safety officer and was familiar with an individual named Elliot Rivers, who he had known through his work at the school . . . I showed Officer Hayward [Grand Jury Exhibit 1A] and asked him his opinion as to who it was he believed that to be[,] and he stated his opinion is that that is Elliot Rivers. He testified about the basis for that opinion, what about the photo made him believe that's Elliot Rivers and talked about his basis . . . of knowing Elliot Rivers.

The prosecutor then showed Rivers's arrest photo to the grand jury, and reminded them that, per Detective Moran's testimony, it was "taken by" the detective the date the defendant was arrested.^[FN1]

A court may dismiss an indictment if the grand jury proceeding is defective as defined by CPL § 210.35 (5). Indeed, the statute compels dismissal when the integrity of the grand jury proceeding is impaired "'and prejudice to the defendant may result.'" People v. Huston, 88 NY2d 400 (1996) (quoting CPL § 210.35 [5]).

As legal advisor to the grand jury, the prosecutor is "'charged with the duty not only to secure indictments but also to see that justice is done.'" Huston, 88 NY2d at 406 (quoting People v. Lancaster, 69 NY2d 20, 25-26 [1986]) (citations omitted). Relatedly, the prosecutor has a duty of fair dealing before the grand jury. People v. Pelchat, 62 NY2d 97, 104 (1984).

Here, the prosecutor's errors, viewed in the aggregate, compel dismissal of the indictment. The prosecutor told the grand jury her summary of the facts, without any limiting instruction, and before the grand jury heard any testimony. Although a brief factual preview is often permissible, and can be helpful in orienting the grand jury, the preview here was so detailed as to deprive the grand jury of its fact-finding function. This error is particularly pronounced in light of the fact that the evidence regarding these details was not robust. Moreover, the prosecutor re-stated, at length, testimony regarding who was depicted in arrest photos, as well as the surveillance footage. In sum, the prosecutor usurped the function of the grand jury, errors which may have prejudiced the defendants. See Huston, 88 NY2d at 406; see also People v. Morgan, 77 Misc 3d 1214(A), *12-13 (Sup. Ct. Queens Co. 2022) (prosecutor usurped the fact-finding function of the grand jury and became an unsworn witness where they confirmed for the grand jury that fingerprints belonged to the defendant; their instruction that the grand jury could examine the fingerprint report was "meaningless" in light of the prosecutor's failure to tell them to disregard their answer); cf. People v. Johnson, 282 AD2d 309, 310-11 (1st Dep't 2001) (prosecutor's preview of potential witness's testimony did not impair integrity of the grand jury because it accorded with the evidence presented and preview of such testimony is necessary for grand jury to decide whether or not to call the potential witness).

Accordingly, the indictment is dismissed, with leave for the People to re-present to another grand jury.

The foregoing is the decision and order of the court.