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Here, the prosecutor properly exercised her discretion

The Suffolk County Grand Jury indicted a certain respondent for rape in the first degree, rape in the second degree, sexual abuse in the first degree (three counts) and sexual abuse in the second degree (three counts). During trial, the respondent presented two witnesses to testify before the Grand Jury. The prosecutor interviewed these witnesses at the time the charges were presented to the Grand Jury, concluded that their proposed testimony was irrelevant, and therefore limited the scope of their testimony. The proposed testimony by the respondent’s wife (the first witness) which was excluded by the prosecutor concerned the family background of the victim, who was her niece. The other witness (the second witness), a friend of the victim, had indicated to the prosecutor that she thought that the victim was fantasizing, but that testimony was also excluded. Thereafter, the County Court of Suffolk County granted the criminal respondent’s motion to dismiss the indictment holding that the testimony of the two defense witnesses concerning their knowledge of the victim’s background had a bearing on her credibility and should have been presented to the Grand Jury. The juvenile was questioned about any domestic violence.

On appeal, the Appellate Court disagreed. The order was reversed, on the law, the indictment was reinstated, and the matter was remitted to the County Court of Suffolk County for further proceedings.

Well settled is the rule that, except to the limited extent that CPL 190.50(6) allows a defendant the right to testify or the right to request that certain witnesses be presented to the Grand Jury, a Grand Jury proceeding is not adversarial in nature. Rather, the primary purpose of the Grand Jury is to determine whether sufficient evidence exists to accuse a person of a crime and to commence criminal proceedings against him. Subject to a duty of fair dealing, the People enjoy wide discretion in presenting their case to the Grand Jury.

Here, the prosecutor properly exercised her discretion in limiting the testimony of the two witnesses designated by the respondent. Based upon a review of the records of the case, the proposed testimony was not substantively exculpatory, but pertained solely to the background and character of the victim and thus was collateral to the crucial question of whether there was legally sufficient evidence, which, if unexplained and uncontradicted, would warrant conviction, as held in the case of People v. Shapiro. Moreover, the proposed testimony was not of such a nature that it would have had a material influence upon the Grand Jury; rather, the proposed testimony involved factors bearing upon credibility, which testimony, if competent, is best presented to a petit jury, as held in the case of People v. Suarez. Thus, the indictment was not rendered defective as a result of the limitation on the testimony of the respondent’s witnesses.

Meanwhile, on 12 March 2009, a resentence was imposed upon a certain defendant by the County Court of Suffolk County, upon his conviction of rape in the first degree (two counts), sexual abuse in the first degree (four counts), and endangering the welfare of a child, and upon his plea of guilty. The defendant was imposed a period of post-release supervision of five years in addition to the determinate sentences of imprisonment of nine years for rape in the first degree, five years for sexual abuse in the first degree, and one year for endangering the welfare of a child which was imposed by the same court on 12 October 1999.

On appeal, the resentence was reversed, on the law, and the original sentence was reinstated.
Here, the imposition of the period of post-release supervision on the defendant violated his rights under the Double Jeopardy Clauses of the United States and New York Constitutions. Thus, the resentence must be reversed, and the original sentence reinstated.

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