Smith, J. (dissenting). The grand jury proceeding was fatally flawed when the People required the defendant to testify first. I therefore dissent. I would reverse the conviction, rendered after a jury trial, for attempted robbery in the third degree in violation of Penal Law §§ 110.00 and 160.05. Because defendant has completed his sentence of 2-4 years as a second felony offender, I would dismiss the indictment. The original indictment occurred on July 11, 1985. Because defendant had not testified before the grand jury, that indictment was dismissed and the case scheduled for a new grand jury. When the defense attorney learned of the prosecutor’s intention to have the defendant testify first, she requested that the court order the prosecution to put its witnesses on first. The court refused to do so and the defendant testified first. That court also denied defendant’s motion to dismiss the second indictment on the grounds that he had been forced to testify first.
The determination here can have no effect on the prosecution or sentence of the defendant. He has already served his time. To the extent, however, that the problem may arise in the future, it should b.e addressed now.
To require the defendant to testify first in the grand jury runs counter to the very notion of an accusatory system and raises due process issues under both the State and Federal Constitutions. (See, People v Futia, 113 Misc 2d 651 [1982].) Defendant has no burden either in the grand jury or at trial. It is the prosecution that must submit evidence of a felony to a grand jury. (CPL 190.55 [2] [a].) It is the prosecution which must present "legally sufficient” evidence to establish that a defendant has committed an offense as well as "competent and admissible” evidence that provides "reasonable cause” to believe the defendant has committed a crime. (CPL 190.65 [1]; 70.10.)
Over the years the grand jury procedure has been criticized as being subject to the will of the prosecution. (2 LaFave and Israel, Criminal Procedure § 15.2 [1984].) There is no adequate reason for increasing the advantage the prosecution already has.