I agree with the result herein. As the majority finds, there is no violation of the defendant’s constitutional rights. In my opinion, however, the record establishes that the sole purpose of the "superseding” indictment was the desire of the District Attorney to avoid relying upon mere investigation of the alibi by having an examination under oath for the obvious purpose of establishing a basis for perjury claims against these witnesses and thereby possibly eliminating them as witnesses for the defendant.
While the statutes in New York State do not preclude the securing of a superseding indictment, they likewise do not contemplate using a Grand Jury for the singular purpose of examining defense witnesses under oath. The procedure is potentially an abuse of the Grand Jury function and might in certain cases cause defense witnesses to avoid trial testimony. *414Any possible abuse of the Grand Jury system in this case, however, does not affect the right of the defendant to a fair trial or his right to avoid self-incrimination. The witnesses did not become unavailable for trial purposes and, as a result, the District Attorney has fortuitously not so prejudiced the defendant as to cause a reversal of the judgment and/or a dismissal of the indictment. The procedure adopted by the District Attorney in this case is not to be condoned.
The judgment should be affirmed.
Koreman, Main and Reynolds, JJ., concur with Sweeney, J.; Herlihy, P. J., concurs in a separate opinion.
Judgment affirmed.