People v. Kaba
| Court | New York Supreme Court — Appellate Division |
| Writing for the Court | Before SULLIVAN |
| Citation | 575 N.Y.S.2d 716,177 A.D.2d 506 |
| Decision Date | 04 November 1991 |
| Parties | The PEOPLE, etc., Appellant, v. Peter James KABA, Respondent. |
Page 716
v.
Peter James KABA, Respondent.
Second Department.
William V. Grady, Dist. Atty., Poughkeepsie (Jaime A. Giannetta, of counsel), for appellant.
John B. Garrity, Jr., Poughkeepsie (Nancy H. Swanson, of counsel), for respondent.
Before SULLIVAN, J.P., and BALLETTA, RITTER and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from an order of the County Court, Dutchess County (Hillery, J.), entered October 12, 1988, which granted the defendant's motion to dismiss the indictment charging him with criminal sale of a controlled substance in the third
Page 717
degree (two counts), and criminal possession of a controlled substance in the third degree (two counts).ORDERED that the order is reversed, on the law, the motion is denied, the indictment is reinstated, and the matter is remitted to the County Court, Dutchess County, for further proceedings consistent herewith.
[177 A.D.2d 507] By Indictment Number 47/88, the defendant was charged with four crimes alleged to have arisen from two separate incidents: one that occurred on March 10, 1988, and a second that occurred on April 2, 1988. In both instances it was alleged that the defendant sold cocaine to a confidential informant.
The defendant moved to dismiss the indictment. In his supporting papers, the defense counsel claimed that the prosecutor erred in not providing him, before this matter was submitted to the Grand Jury, with a tape which contained a recording of the transaction that occurred on March 10, 1988. Counsel argued that this tape clearly demonstrated the applicability of the agency defense in this case and, additionally, demonstrated that the confidential informant ingested cocaine prior to the March 10 incident. Counsel argued that had he been in possession of the tape in question he would have requested the prosecutor to instruct the Grand Jury with respect to the agency defense and would have demanded that the prosecutor question the confidential informant concerning his use of cocaine on March 10, 1988.
The court granted the defendant's motion to dismiss the indictment pursuant to CPL 210.20(1)(c). Upon reviewing the Grand Jury minutes as well as the subject tape recording, the court found that indeed the tape supported the defendant's claim that the confidential informant had used cocaine shortly before his involvement with the defendant...
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