Chief Judge DiFiore and Judges Stein, Garcia, Wilson and Feinman concur. Judge Rivera concurs in result in an opinion in which Judge Fahey concurs.
MEMORANDUM:The order of the Appellate Division should be affirmed. Defendant, who pled guilty, claims his guilty plea was entered involuntarily and the indictment must be dismissed because the prosecutor failed to notify the Grand Jury of his request to call a particular witness, and failed to allow the grand jury to vote whether to hear that witness, in violation of Criminal Procedure Law §190.50(6). Defendant does not contend that the evidence before the grand jury was insufficient to support the indictment. Instead, defendant claims that the prosecutor’s conduct impaired the integrity of the grand jury proceeding and argues his motion to dismiss the indictment for defective grand jury proceedings on that ground is not forfeited by his guilty plea. The Appellate Division held that defendant’s plea was entered voluntarily, knowingly, and intelligently and that “by pleading guilty, the defendant forfeited his contention that his motion to dismiss the indictment should have been granted” (150 AD3d 762 [2017]). We granted leave to appeal (29 NY3d 1130 [2017]), and now affirm.On review of the record as a whole, we agree that defendant entered his guilty plea “understandingly and voluntarily” (People v. Harris, 61 NY2d 9, 19 [1983]) and that the County Court did not improvidently exercise its discretion in refusing to allow defendant to withdraw his plea (Criminal Procedure Law §220.60[3]). Nonetheless, we have explained that even after entering a valid guilty plea, “a defendant may not forfeit a claim of a constitutional defect implicating the integrity of the process” (People v. Hansen, 95 NY2d 227, 231 [2000]) and we have recognized that certain claimed defects in a grand jury proceeding rise to this level (see e.g. Hansen, 95 NY2d at 232 [claims implicating "the constitutional function of the grand jury to indict" or "the prosecutor's duty of fair dealing" survive a guilty plea]; People v. Pelchat, 62 NY2d 97, 108 [1984] [claim that prosecutor knew, and concealed from the grand jury, his knowledge that there was no evidence to support the indictment survives a guilty plea]).Defendant’s claim in this case rests on the purported exclusion of a witness, the substance of whose testimony was contained in an affidavit provided to the courts below. That proffered testimony was largely inadmissible and, in any event, would have inculpated him by establishing that he had a relationship with the complainant and had been in her presence in violation of an order of protection. The exclusion of such testimony before the grand jury does not present “a constitutional defect implicating the integrity of the process” (Hansen, 95 NY2d at 231) and accordingly the claimed violation in this case did not survive defendant’s guilty plea.In light of defendant’s forfeiture of this claim, his remaining contentions have been rendered academic.
