People v. Kaba

Decision Date04 November 1991
Citation575 N.Y.S.2d 716,177 A.D.2d 506
PartiesThe PEOPLE, etc., Appellant, v. Peter James KABA, Respondent.
CourtNew York Supreme Court — Appellate Division

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 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.

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 on March 10, 1988. The court also found that the prosecutor failed to disclose to the Grand Jury that the confidential informant had certain charges adjourned in contemplation of dismissal in return for his cooperation in this case. Thus, the court granted the defendant's motion on the ground that the Grand Jury proceedings were defective (CPL 210.35[5].

The fact that the confidential informant may have been intoxicated or that he had a motive to lie are issues that merely address the witness's credibility and are collateral to the basic issue the Grand Jury must decide; that is, that there is legally sufficient evidence that a crime was...

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13 cases
  • People v. Lee
    • United States
    • New York Supreme Court
    • 19 Agosto 1998
    ...69 N.Y.2d 20, 26, 511 N.Y.S.2d 559, 503 N.E.2d 990, cert. denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697; People v. Kaba, 177 A.D.2d 506, 508, 575 N.Y.S.2d 716) (People v. Ramjit, 203 A.D.2d 488, 489, 612 N.Y.S.2d For, grand jury proceedings are non-adversarial, except for the provisio......
  • People v. Ramos
    • United States
    • New York Supreme Court
    • 3 Abril 2012
    ...v. Colucci, 32 AD3d 1044 [2006],supra; People v. Ramjit, 203 A.D.2d 488 [2d Dept 1994], lv denied84 N.Y.2d 831 [1994];People v. Kaba, 177 A.D.2d 506 [2d Dept 1991], lv denied79 N.Y.2d 859 [1992];People v. Martucci, 153 A.D.2d 866 [2d Dept 1989], lv denied74 N.Y.2d 950 [1989];People v. Monro......
  • People v. Hansen
    • United States
    • New York Supreme Court — Appellate Division
    • 17 Enero 2002
    ...sufficient evidence that a crime [had been] committed and reasonable cause to believe that * * * defendant committed it" (People v Kaba, 177 A.D.2d 506, 507, lv denied 79 N.Y.2d 859). The information omitted was not essential to the Grand Jury's responsibility to determine whether a prima f......
  • People v. Ramjit
    • United States
    • New York Supreme Court — Appellate Division
    • 18 Abril 1994
    ...69 N.Y.2d 20, 26, 511 N.Y.S.2d 559, 503 N.E.2d 990, cert. denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697; People v. Kaba, 177 A.D.2d 506, 508, 575 N.Y.S.2d 716). Moreover, "[i]n the ordinary case, it is the defendant who, through the exercise of his own right to testify and have others......
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