People v. Dunbar
| Decision Date | 07 May 1981 |
| Citation | 440 N.Y.S.2d 613,423 N.E.2d 36,53 N.Y.2d 868 |
| Parties | , 423 N.E.2d 36 The PEOPLE of the State of New York, Respondent, v. Gerald DUNBAR and Donald Wolfson, Appellants. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 75 A.D.2d 823, 428 N.Y.S.2d 875, should be affirmed.
Defendants appeal from their convictions of criminal sale of marihuana in the fourth degree entered, upon their pleas of guilty, in satisfaction of the indictments against them.
Contrary to defendant Wolfson's argument, the prosecution was not barred by the alleged representation or promise that the "book would be closed" following completion of the internal, administrative investigation of marihuana use by members of the Nassau County District Attorney's staff. Immunity may be conferred by operation of the Constitution (see N.Y.Const. art. I, § 6; People v. Steuding, 6 N.Y.2d 214, 189 N.Y.S.2d 166, 160 N.E.2d 468) or as authorized by statute (see CPL 50.20, 190.40). Neither basis is claimed to exist here. The informal "promise" of nonprosecution, if such there was, could confer no immunity from prosecution. Except perhaps in unusual circumstances not alleged here, such a promise at most would entitle defendant to suppression of the resulting statements as involuntary (see CPL 60.45, subd. 2, par. cl. [i]).
Also rejected is the assertion by defendants Wolfson and Dunbar that the Grand Jury proceeding was defective within the meaning of CPL 210.20 (subd. 1, par. and 210.35 (subd. 5). Defendants rely first on the failure of the District Attorney to obtain a waiver of nonresidence, required for county employment by section 13-1.0 of the Nassau County Administrative Code, for the Special Assistant District Attorney prior to presentment to the Grand Jury, asserting that the defect rendered the prosecutor a person unauthorized to appear before that body. It is true that presentation to a Grand Jury by one who has no jurisdiction over the subject matter so impairs the integrity of the Grand Jury as to require dismissal of the indictment (People v. Di Falco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732). But there is no such lack of authority here. Whatever the other effects of a failure to comply with the waiver of nonresidence requirement, that omission does not affect the authority or power of an appointee to serve as Special...
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