Justice Troy K. Webber
Hairston, charged with burglary, moved for dismissal arguing the grand jury proceedings were defective as a result of prosecutorial misconduct. Before Hairston’s testimony, defense counsel notified prosecutors of a potential witness, Gastin, who was living in the basement apartment of the burglarized premises, as an illegal subletee of complainant. The assistant district attorney concluded Gastin’s account was not credible in light of other testimony and physical evidence and declined to present Gastin as a witness to the grand jury. Hairston argued the prosecutions’ failure to present Gastin’s testimony impaired the integrity of the grand jury by preventing them from considering the evidence. The court noted there appeared to have been a genuine issue if Gastin’s testimony was credible and competent, including the prosecutions’ argument that calling Gastin as a witness may have constituted an ethical violation. Thus, it found Hairston’s argument prosecutors violated Criminal Procedure Law §§190.50(6) and 210.35(5) was meritless. Also, the court stated it could not be said Gastin’s testimony was of such nature as to have been exculpatory or tending to negate guilt. Thus, Hairston’s motion to dismiss was denied.
