Kassal, J. (dissenting). I join with Justice Smith in dissenting on the ground that it is inherently unfair and violates fundamental notions of due process to require an accused to give his testimony to the grand jury before that body has heard one iota of evidence alleging his commission of a crime. This proposition is supported by the due process provision in United States Constitution Fourteenth Amendment and its analogue, New York Constitution, article I, § 6.
While the prosecution enjoys wide discretion in presenting its case to the grand jury, that which comprises the prosecution’s case does not include the defendant and/or his evidence. (People v Lancaster, 69 NY2d 20, 25-26, cert denied 480 US 922; People v Futia, 113 Misc 2d 651.) Indeed, it is reasonable to conclude that, "if the District Attorney does not submit evidence before the Grand Jury to create a prima facie case *380against the accused, there is no need for the defendant to testify at all.” (People v Futia, supra, at 653.) The practice herein sanctioned by the majority not only permits the prosecutor to place "nonexistent evidence” before the grand jury through cross-examination of an accused regarding a crime yet to be established (People v Monroe, 125 Misc 2d 550, 555), but enables the tailoring of testimony and prosecutorial theory to meet any defenses set forth.