        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1002
KA 13-00052
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOSEPH ELIOFF, DEFENDANT-RESPONDENT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Onondaga County Court (Donald E.
Todd, A.J.), dated August 7, 2012. The order, insofar as appealed
from, granted without prejudice that part of the motion of defendant
seeking to dismiss the indictment on the grounds of defective grand
jury proceedings.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law, that part of defendant’s omnibus
motion seeking to dismiss the indictment is denied, the indictment is
reinstated and the matter is remitted to Onondaga County Court for
further proceedings on the indictment.

     Memorandum: On appeal from an order granting that part of
defendant’s omnibus motion seeking to dismiss the indictment pursuant
to CPL 210.35 (5), the People contend that County Court erred in
determining that the integrity of the grand jury proceedings had been
compromised by prosecutorial misconduct and in dismissing the
indictment on that ground. We agree.

     “ ‘[D]ismissal of an indictment under CPL 210.35 (5) must meet a
high test and is limited to instances of prosecutorial misconduct,
fraudulent conduct or errors which potentially prejudice the ultimate
decision reached by the [g]rand [j]ury’ ” (People v Sheltray, 244 AD2d
854, 855, lv denied 91 NY2d 897; see People v Huston, 88 NY2d 400,
409). As the Court of Appeals has stated, “not every improper
comment, elicitation of inadmissible testimony, impermissible question
or mere mistake renders an indictment defective. Typically, the
submission of some inadmissible evidence will be deemed fatal only
when the remaining evidence is insufficient to sustain the indictment”
(Huston, 88 NY2d at 409; see People v Jeffery, 70 AD3d 1512, 1513;
People v Butcher, 11 AD3d 956, 958, lv denied 3 NY3d 755).
                                 -2-                         1002
                                                        KA 13-00052

     Here, the prosecutor was required to establish that the four-
year-old victim could provide unsworn testimony, but failed to do so
(cf. People v Raymond, 60 AD3d 1388, 1388, lv denied 12 NY3d 919).
The prosecutor also violated the unsworn witness rule during an
attempt to persuade the child to testify about the incident (see
generally People v Paperno, 54 NY2d 294, 300-301). Nevertheless, we
conclude that the prosecutor did not thereby engage in conduct that
was fraudulent in nature, nor was the prosecutor’s conduct so
egregious as to impair the integrity of the grand jury proceedings
(see People v Conklin, 105 AD3d 1387, 1389; People v Carey, 241 AD2d
748, 751, lv denied 90 NY2d 1010; cf. Huston, 88 NY2d at 409-410). We
further conclude that the remaining evidence is legally sufficient to
sustain the indictment. Contrary to defendant’s contention, the lack
of direct testimony of penetration does not compel the conclusion that
the evidence is legally insufficient to support the count of the
indictment charging him with predatory sexual assault against a child
(Penal Law § 130.96), insofar as that count is based upon commission
of the crime of rape in the first degree (§ 130.35 [2]). Although we
disregard the evidence provided by the victim due to the prosecutor’s
failure to establish that the victim had the capacity to provide
unsworn testimony, we note that “[t]he girl’s inability to testify
with respect to penetration is not . . . conclusive . . . [where, as
here,] other evidence existed from which that fact could be
established” (People v Carroll, 95 NY2d 375, 383; see People v McDade,
64 AD3d 884, 886-887, affd 14 NY3d 760). Here, witnesses testified
that the victim made a prompt complaint, that her vaginal area was
bruised and had abrasions and a tear, and that semen with DNA
consistent with defendant’s DNA was found in her underwear. Inasmuch
as the admissible evidence is legally sufficient with respect to all
three counts, the court erred in dismissing the indictment.




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
