Justice Angelo Delligati
Hubsher moved for dismissal of the indictment arguing the grand jury proceeding was defective. The court found the evidence before the grand jury was legally sufficient to establish the crimes charged in the indictment. It was alleged the complaining witness consulted with Hubsher, a psychiatrist and they had a sexual encounter which complainant stated Hubsher stated was part of her treatment. It was also alleged Hubsher loaned complainant money. The court noted the grand jury testimony was sufficient to support the penal law violation alleged in the indictment. At issue was the prosecutor’s decision not to put forth before the grand jury an alleged “promissory note” signed by complainant promising to repay the loan. Hubsher argued it was prosecutorial misconduct not to offer the note for the grand jury’s consideration. The court ruled prosecutors were not required to present any and all information Hubsher submitted in support of his defense, noting the assistant district attorney properly used her discretion in the use of the promissory note. It stated Hubsher could have put this defense before the grand jury by exercising his right to testify, and is free to offer it at the trial of his next indictment, denying dismissal.
