By notice of motion dated November 4, 2020, the defendant moves, through his attorney, Robert Abdella, Esq., for Omnibus relief. The People have responded through the affirmation in opposition of Peter Califano, Esq., dated November 13, 2020.

The matter, now coming before the Court for a decision, and after due deliberation thereon, this Court renders this Decision and Order, separately addressing each of the issues before it.

Defendant moves, pursuant to CPL §§210.20[1][c] and 210.35[5], for dismissal of the indictment, arguing that defendant was prejudiced by the introduction of hearsay evidence before the grand jury.

A Grand Jury proceeding is defective when it fails to conform to the requirements of CPL Article 190, to such a degree that the integrity of the proceeding is impaired, and prejudice to the defendant may result. See, CPL §210.35[5]; See also, People v. Spencer, 289 AD2d 877. While dismissal of an indictment is an extreme remedy, relief under CPL §210.35[5] does not require proof of actual prejudice, and such relief may be denied only where there was no possibility that defendant was prejudiced. See, People v. Huston, 88 NY2d 400; People v. Sayavong, 83 NY2d 702; People v. Wilkins, 68 NY2d 269; People v. Darby, 75 NY2d 449. The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof offered in support of the indictment, and the degree of inappropriate [*2]prosecutorial influence or bias. See, People v. Tomaino, 248 AD2d 944.

In the case at bar, the Grand Jury was presented with the testimony of three (3) witnesses: The victim, an eyewitness, and the sole investigating officer.

The victim testified before the Grand Jury that the defendant forcibly touched her and sexually assaulted her. The eyewitness testified before the Grand Jury that the victim consented, and engaged in consensual sexual conduct with the defendant. The Grand Jury testimony of the investigating officer was mostly comprised of a hearsay narrative of statements made to the officer, by the victim and the eyewitness, approximately two (2) weeks after the incident.

While the victim's prior statements to the investigating officer were consistent with her Grand Jury testimony, the prior statements of the eyewitness were inconsistent with her Grand Jury testimony. According to the officer's testimony, the eyewitness reported that the victim was sexually assaulted by the defendant, and that she did not offer consent. The prior statements of both the victim, and the eyewitness, were offered to the Grand Jury, without any limiting instructions by the prosecutor.

First and foremost, as a general rule, hearsay evidence is not permitted to be introduced before the Grand Jury. See, People v. Swamp, 84 NY2d 725; People v. Cantos, 174 Misc 2d 598. Second, a party may not bolster the testimony of his witness, through the use of prior consistent statements, unless the witness's testimony has been attacked as a recent fabrication. See, People v. Fagan, 104 AD2d 252. Finally, while a prior inconsistent statement of a witness may be offered to impeach that witness's credibility, it does not constitute evidence in chief, and it may not be received as evidence of the truth of the matter asserted. See, CPL §60.35[1] & [2].

This Court is inclined to agree with the defendant that the testimony of the investigating officer possessed no probative value as to any material issue. The prosecutor's use of this hearsay testimony, without any limiting instructions, appears to have been offered for the purpose of bolstering the victim's testimony, and impeaching the credibility of the eyewitness.

The impropriety of the officer's testimony was pervasive. In addition to permitting the introduction of inadmissible hearsay, the prosecutor prompted this witness to offer his opinion about the veracity of the victim's and witness's prior statements (See, Grand Jury Transcripts, pg. 49, lines 12-14), to opine who was, and was not a victim (Id., at pg. 50, lines 15-18), and to offer his legal and factual conclusions about the sufficiency of the evidence (Id., at pg. 51, lines 17-22).

Lay witnesses may testify only to facts, and not to their opinions, or conclusions. Determinations as to whether the victim, or the eyewitness was the more reliable witness, and the weight to accord each witness's testimony, was to be made solely by the Grand Jury, uninfluenced by the opinion of the investigating officer. See, People v. Russell, 165 AD2d 327; People v. Batashure, 75 NY2d 306. This impermissible testimony presented an unacceptably high risk that the Grand Jury might undervalue their role in reviewing the evidence and deciding issues of fact and credibility. See, Batashur, 75 NY2d 306.

While these errors were significant, the question remains whether they rendered the indictment fatally defective. See, CPL §210.20[1][c].

The CPL provides that a Grand Jury may issue an indictment only where there is legally sufficient evidence and competent and admissible evidence providing reasonable cause to believe that a person has committed an offense. See, §CPL 190.65[1][b]. Reasonable cause exists "when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary [*3]intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." See, §CPL 70.10.

In reviewing the proceedings before the Grand Jury, this Court must consider whether "the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, and deferring all questions as to the weight or quality of the evidence, would warrant conviction." See, People v. Jennings, 69 NY2d 103; People v Pelchat, 62 NY2d 97.

As to the question of prejudice, this Court has weighed the evidence before the grand jury and the impact the impermissible testimony may have had on highly dispositive issues in this case. After careful consideration, this Court is constrained to rule that the integrity of the Grand Jury proceeding was impaired to such a degree that prejudice to the defendant has resulted. See, People v. Butterfield (NY App. Div. 1999) 267 AD2d 870; See, §CPL 210.35[5]. Consequently, the indictment was improper. Defendant's motion for dismissal is hereby granted.

In light of the foregoing, defendant's remaining requests for relief are denied, as moot.

The foregoing constitutes the Decision and Order of this Court.