
    The People of the State of New York, Appellant, v Fred Colban Respondent.
   Order, Supreme Court, Bronx County (David Stadtmauer, J.), entered May 14, 1991, dismissing the indictment, unanimously affirmed.

We agree with the motion court that the Grand Jury proceedings were compromised by the prosecutor’s unsolicited comment that defendant had elected not to testify, and attendant failure to then instruct the Grand Jury that no inference unfavorable to defendant could be drawn from his failure to approach and testify (CPL 190.30 [1]; People v Scott, 70 AD2d 601). Concur—Milonas, J. P., Ellerin, Ross and Smith, JJ.

Kupferman, J.,

concurs in the result only in a separate memorandum as follows: In context, the statement that the defendant had not elected to testify had no significance. The Grand Jury would obviously know that the defendant was not going to testify. The People were simply stating that there were two witnesses for the defendant who were going to testify.

However, I can concur in the result because the court stated that it was dismissing the indictment with leave to resubmit.  