Opinion
June 18, 1999
Appeal from Order of Oneida County Court, Donalty, J. — Dismiss Indictment.
PRESENT: PINE, J. P., HAYES, PIGOTT, JR., SCUDDER AND BALIO, JJ.
Order unanimously affirmed. Memorandum: County Court properly dismissed the indictment on the ground that the Grand Jury proceeding was defective ( see, CPL 210.20 [c]). Defendant testified before the Grand Jury with his attorney at his side. During the proceeding, defendant attempted to confer with his attorney, but the prosecutor told defendant that he could not speak with his attorney. Thus, defendant was denied his right to seek the advice of counsel during his testimony in violation of CPL 190.52 (2) ( cf., People v. Diaz, 211 A.D.2d 402, lv denied 85 N.Y.2d 972). That violation impaired the integrity of the Grand Jury proceeding, and there was "an articulable `likelihood of' * * * prejudice" to defendant ( People v. Adessa, 89 N.Y.2d 677, 686; see, CPL 210.35; People v. Huston, 88 N.Y.2d 400, 409; People v. Biro, 171 Misc.2d 165, 166-168).