The criminal defendant man was indicted for the crimes of robbery in the first degree, robbery in the second degree and grand larceny in the second degree. On August 10, 1978 the defendant moved for a dismissal of the indictment on the ground that he was not given an opportunity to testify before the grand jury, although timely notice to that effect was served upon the district attorney. On August 25, 1978 the accused man’s motion was heard. The complainant conceded that the defendant man was not notified to appear as a witness before the grand jury, but would not consent to a dismissal on that ground. The complainant moved that, instead, the indictment be dismissed in the interests of justice. The defendant joined in the complainant’s motion and the indictment was dismissed on that ground.
Thereafter, on August 28, 1978, the complainant’s instant application for leave to resubmit was argued. The complainant alleged that through inadvertence, leave to submit the charges to another grand jury and to make the dismissal conditional upon the defendant testifying under a waiver of immunity was not requested. Credit card fraud was not involved.