TITONE, J.
The Criminal Procedure Law safeguards the secrecy of Grand Jury proceedings by carefully circumscribing the categories of persons who may be present during that function. The question we are called upon to decide here is whether a police investigator who will serve as a fact witness at Grand Jury proceedings concerning the sexual abuse of several children may be present during the children's testimony as a video camera operator under the authority of CPL 190.25 (3). We conclude that the officer's status as a witness disqualified him from employment as a video operator within the meaning of the statute, and that, accordingly, the indictment should be dismissed.
I
Defendant was charged with four counts of sexual abuse and four counts of endangering the welfare of a child. In lieu of giving live Grand Jury testimony, three child witnesses under the age of 12 gave videotaped testimony pursuant to CPL 190.32 to be used at the later Grand Jury proceedings. Police Investigator Mitchell, who had previously questioned the children in connection with his investigation of the case against defendant, operated the video camera during that taping upon the request of respondent Yates County District Attorney. Mitchell later testified for the prosecution before the Grand Jury and again at all other stages of the criminal action.
By order to show cause, defendant sought dismissal of the indictment, contending that the investigating officer was not authorized to be present during the videotaping of the children's testimony because he was also to testify as a Grand Jury witness. The People countered, and the trial court agreed, that the officer was a videotape operator "employed by the district attorney" (CPL 190.32 [c]) — one of the persons authorized to be present during Grand Jury proceedings under CPL 190.25. Following a jury trial, defendant was convicted of two counts of first degree sexual abuse and three counts of endangering the welfare of a child, and sentenced thereon.
The Appellate Division affirmed the convictions. While holding that the officer's presence violated CPL 190.25 and 190.32 because the People failed to demonstrate that the officer was technically "employed" by the District Attorney as a video operator, the Court concluded that the officer's presence did not impair the integrity of the Grand Jury process or create a possibility of prejudice to defendant. A Judge of this Court granted defendant leave to appeal, and we now reverse.
II
The officer's presence in this case was a product of CPL 190.32 (2), which authorizes the videotaping of Grand Jury testimony of a "child witness." This alternative procedure is designed to "lessen the traumatic impact upon young victims of sex offenses" by enabling the child to testify in a setting less intimidating than that usually associated with the impressive presence of a large Grand Jury audience (Mem in Support of Assembly Bill A 11502, Senator Martin J. Knorr, Bill Jacket, L 1984, ch 804; see also, Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 190.32, at 254). The Legislature's extension of statutory secrecy requirements and provisions prohibiting attendance by unauthorized persons to the taping process (see, CPL 190.25; 190.32 [5] [c]) indicates that videotaped testimony is to be treated as the functional equivalent of live Grand Jury testimony (see, Mem in Support of Assembly Bill A 11502, Senator Martin J. Knorr, Bill Jacket, L 1984, ch 804). Accordingly, the enduring secrecy principles governing the conduct of personal Grand Jury appearances and proceedings apply with equal force to videotaped examinations and drive our analysis in this case.
A "child witness" is defined as a person under the age of 12 who is the victim of one of the enumerated abuse or sex crimes and who the People intend to call as a witness in a Grand Jury proceeding (see, CPL 190.32 [a]; [2], [5]).
The Grand Jury has long been heralded as "`the shield of innocence * * * and as the guard of the liberties of the people against the encroachments of unfounded accusations from any source'" (People v Minet, 296 N.Y. 315, 323). The integrity of the Grand Jury is preserved by ensuring that its actions and deliberations are conducted in such a manner that they are "`uninfluenced by the presence of those not officially and necessarily connected with it'" (People v Di Falco, 44 N.Y.2d 482, 488, quoting People v Minet, 296 N.Y. 315, 323, supra). Accordingly, secrecy has become "a vital requisite of Grand Jury proceedings" (Di Falco, supra, at 488; Minet, supra, at 323), and "the law makes every effort to safeguard this secrecy" (People v Conte, 17 Misc.2d 664, 665).
The recognized purposes of Grand Jury secrecy are several: to protect an innocent accused, to prevent a suspect's flight and to shield grand jurors from interference by those under investigation (People v Di Napoli, 27 N.Y.2d 229, 235). Beyond those objectives, and of particular relevance here, secrecy creates a climate designed to encourage prospective witnesses to testify freely and truthfully and to prevent subornation of perjury and witness tampering (id.).
With those goals in mind, lawmakers have historically placed strict limitations on attendance at Grand Jury proceedings to safeguard the secrecy objectives of that institution (see, CPL 190.25 [a]). Thus, CPL 190.25 (3) furnishes a carefully circumscribed list of persons who may be present during Grand Jury proceedings generally and, more specifically, during the videotaping of a child witness' testimony (see also, CPL 190.32 [c]). The fixed categories of authorized attendants generally include only those who perform some official administrative or prosecutorial function necessary to conduct or record the proceeding (see, e.g., CPL 190.25 [a] [District Attorney]; CPL 190.25 [c] [stenographer]; CPL 190.25 [d] [interpreter]; CPL 190.25 [f]) [a witness' attorney]). Among those authorized to be present is an "operator" (see, CPL 190.25 [g]), defined elsewhere in the statute as "a person employed by the district attorney who operates the video camera to record the examination of a child witness" (CPL 190.32 [c]).
The People in this case contend that the investigating officer was authorized to be present during the children's Grand Jury testimony because his services were used to operate the video camera. Contrary to the Appellate Division's assumption, sections 190.25 and 190.32 do not require a showing that the District Attorney formally hired and agreed to pay a person to operate the video camera. Rather, it is sufficient if the individual in question is operating the video camera at the District Attorney's specific request. Thus, the People are correct in their contention that the absence of a conventional hire agreement did not in itself disqualify Officer Mitchell from serving as an "operator" under CPL 190.25.
We nonetheless conclude that Investigator Mitchell's presence as a video camera operator was unauthorized because another circumstance disqualified him from serving as an operator — namely, his status as a fact witness in the case. It is by now axiomatic that two witnesses are not authorized to be simultaneously present before the Grand Jury (People v Minet, 296 N.Y. 315, supra; People v Wilson, 77 A.D.2d 713; People v De Ruggiero, 96 Misc.2d 458; People v Conte, 17 Misc.2d 664). In the seminal case of People v Minet ( 296 N.Y. 315, supra), this Court recognized that the presence of a witness during the testimony of another impaired the purposely secret character of Grand Jury proceedings because a witness might be inclined to give an inaccurate or incomplete account of his or her knowledge of a crime if "there were present a person who was free to publish his testimony" (id., at 324). Indeed, in time-honored language, the Minet Court observed that "[a] change in expression, a pressure on the hand or a warning glance * * * might well influence, suppress or alter testimony to the prejudice of the defendant. There may have been prior expressions or conversations between the two witnesses which the one then giving testimony might well hesitate to repudiate or modify in the presence of the other" (id., at 322).
Certainly, the goal of fostering free and truthful testimony by preserving the confidential nature of Grand Jury proceedings is compromised by the presence of a witness during the testimony of another. Indeed, because a person's unauthorized presence may affect the accuracy with which another witness testifies, a "primary function" of the Grand Jury, which "is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution" risks impairment (People v Calbud, Inc., 49 N.Y.2d 389, 394). Even in the context of a public trial, the exclusion of a witness during the testimony of another concerning "events or facts in dispute" is sanctioned as a device to preserve the truth-seeking function by "`preventing one prospective witness from being taught by hearing another's testimony'" (People v Santana, 80 N.Y.2d 92, 100, quoting 6 Wigmore, Evidence § 1838, at 461 [Chadbourn rev 1976]; see also, People v Cooke, 292 N.Y. 185, 190-191). Manifestly, a person whose presence seriously threatens any of the goals of the bedrock secrecy requirement — here the protection of witnesses and fostering of truthful testimony — cannot be authorized to attend the Grand Jury proceedings under the aegis of a statutory provision for which that person may technically qualify.
The presence of Officer Mitchell — a witness — during the child witnesses' testimony was undeniably prohibited by the secrecy rule. That very same rule also operates as an impediment to his service as a videotape operator (cf., People v Hyde, 85 A.D.2d 745, 746). Indeed, were we to hold that Officer Mitchell was qualified as an operator, we would encourage the People to circumvent long-standing principles upon which the integrity of the Grand Jury is founded. Clearly, the limited statutory exception for the presence of an "operator" was created with a singular, ministerial purpose — to facilitate the taking of videotaped testimony of child witnesses — and was not intended to create a giant loophole through which other witnesses could gain access to confidential proceedings and "jeopardize [the] safeguards with which the cumulative wisdom of our legislators, lawyers and judges has surrounded the institution of the grand jury" (Minet, supra, at 322).
While we recognize that a careful balancing of defendants' and victims' rights was made in enacting the statutory provision permitting substitution of a videotape examination for live presentation of Grand Jury testimony, we are also aware that the potential for irregularities especially inherent in the taping process compels more strict and careful compliance with the fundamental secrecy mandates. By statute, the videotaping may be conducted "anywhere and at any time," provided that the tape begins with a statement of the date, time and place of the examination and a listing of those present (CPL 190.32 [a]). As recognized in Minet, an exchange between the unauthorized person and the witness is often subtle and undetectable through an inspection of the record ( 296 N.Y. 315, 322, supra). This concern is magnified in the videotape process where those present in the room other than the testifying witness are not visible on the tape. Indeed, a greater possibility exists that unauthorized persons will be present at that unregulated location where the secrecy safeguards normally ensured by the formality and solemnity of Grand Jury proceedings are lacking. The potential for improper influence of a Grand Jury witness is heightened where that witness is a child who may be unusually susceptible to signals — real or perceived — emanating from an on-looker. Accordingly, the courts have a special duty to guard against prejudice and to preserve the confidential nature of the procedures employed when the videotaping process is involved.
III
Having concluded that the officer's presence was unauthorized, our remaining concern is whether "prejudice to the defendant may result" from that defect (CPL 210.35) — a predicate to dismissal of the indictment as defendant seeks under CPL 210.20 (1) (c). Notably, defendant need not demonstrate actual prejudice under this statutory scheme to prevail (see, People v Wilkins, 68 N.Y.2d 269, 276).
In determining whether a possibility of prejudice may result from a person's unauthorized Grand Jury presence, the courts must consider all of the circumstances, including whether that person had an opportunity to interact with the witness, an inclination to influence the other's testimony (cf., People v Wilson, 77 A.D.2d 713, supra), or some manifest stake or interest in the outcome of the proceeding (see, People v Gilbert, 149 Misc.2d 411, 413 [distinguishing cases where unauthorized persons have nonprosecutorial status from cases involving unauthorized prosecutors]). Additionally, where the unauthorized attendee is a fact witness who hears the testimony of another concerning the substance of the charges against the accused, the possibility of prejudice to the defendant is demonstrated (cf., People v Conte, 17 Misc.2d 664, 666, supra [no evidence that one Grand Jury witness "was present at any time that (the other witness) was sworn or began testifying"]). Significantly, although Minet was decided at a time when the statutory scheme required automatic dismissal of an indictment for unauthorized presence — without any showing of prejudice (see, former Code Crim Pro § 313 [2]) — this Court recognized that the possibility of prejudice was inherent in the simultaneous presence of two fact witnesses ( 296 N.Y., at 322, supra).
IV
Relying on the aforementioned principles, we conclude that the officer's unauthorized presence during the videotaping of the child witnesses' testimony constituted a defect in the proceeding to such a degree that the resulting possibility of prejudice to defendant warrants dismissal of the indictment. While we recognize that the danger of prejudice could conceivably have arisen from the officer's ability to prompt or influence the children during their testimony, the claim pressed by defendant throughout these proceedings, and upon which we rest our determination, is that the possibility of prejudice to this defendant was demonstrated because the investigating officer, who played a pivotal role in the prosecution of this criminal action against defendant, had the opportunity to listen to the child witnesses' testimony and to tailor his testimony to theirs. Contrary to the dissent's contention, our conclusion that a risk of prejudice resulted is not based solely on "speculative theorizing" (dissenting opn, at 716), but is grounded firmly on the fact that the children's testimony that was overheard by Officer Mitchell concerned substantive allegations of sexual abuse directly pertaining to this defendant's guilt or innocence (cf., People v De Ruggiero, 96 Misc.2d 458, 461, supra [no possibility of prejudice where two detective-witnesses simultaneously present in Grand Jury room "to expedite the process of playing (eavesdropping) tapes" where one detective's testimony was limited to identifying male voices on the tape, and the other detective's testimony concerned only identification of female voices]). The officer's own recollection and recitation of the events in question could have been innocently clouded by the several versions of the events attested to by the children. Additionally, as a representative of the prosecution in this case, the officer undeniably had an incentive and an opportunity to bolster the children's testimony by conforming his own to the allegations that he overheard. Thus, the potential for prejudice to this defendant was solidly demonstrated, and was not remedied by the fact that Officer Mitchell took the requisite oath of secrecy prior to taping (see, CPL 190.32 [c]). That vow required the officer not to disclose the substance of the victims' videotaped examinations and could not remove the taint caused by the officer's capacity to reflexively alter his own testimony or influence, however innocently, that of the children.
The dissent contends that the consistency in the children's initial statements and trial testimony "punctuates the lack of any possibility or actuality of prejudice" to this defendant (dissenting opn, at 715). This analysis is flawed precisely because the danger associated with the attendance of this law enforcement official is that the children's awareness that the officer is familiar with their earlier statements may well have deterred those fragile witnesses from modifying their prior versions of the events in question, had they later been inclined to do so. Thus, consistency in the children's statements is not a reliable basis to refute the conclusion that the possibility of prejudice to this defendant has been demonstrated.
Indeed, while testifying during a Sandoval and Huntley hearing, and again at trial, Officer Mitchell related in his own words the substance of a number of the specific allegations made by the children against defendant, stated that he asked defendant if the allegations were true, and then repeated the substance of defendant's responses to those allegations.
The dissent contends that an affirmance is warranted because "a conclusive lack of actual prejudice is demonstrable" (dissenting opn, at 713). However, it is precisely because of the problem recognized by the dissent — that "[n]ot a shred of evidence is discernible or deducible from the record" (dissenting opn, at 714) — that the governing inquiry focuses not on whether a defendant was actually prejudiced, but on whether some conduct during Grand Jury proceedings created the possibility of prejudice to a defendant. That a defendant need only demonstrate that a defect in Grand Jury proceedings created a risk of prejudice is not a rule invented by the majority in this case, but one with strong jurisprudential roots (see, People v Wilkins, 68 N.Y.2d 269, 276, supra; People v Di Falco, 44 N.Y.2d 482, supra), and supported by the plain language of CPL 210.35 (5). Indeed, an actual prejudice test, included in two earlier drafts of that section, was changed in the final draft enacted by the Legislature to read "prejudice to the defendant may result" (see, Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 210.35, at 676).
The People steadfastly maintain that the officer's presence was comforting to the children, and not prejudicial, because they had developed a relationship with him during the preliminary stages of the investigation. Ironically, however, the People unwittingly identify precisely the hazard which compels the officer's exclusion — that the established familiarity between the officer and the children created a climate naturally lending itself to the mutual exchange of subtle messages.
Thus, the investigating officer's operation of the video camera during the children's Grand Jury testimony was a serious and substantial defect which jeopardized the sacred secrecy principles upon which the Grand Jury's integrity rests. The possibility of prejudice caused by the simultaneous presence of these witnesses outside of the formal Grand Jury setting warranted dismissal of the indictment under CPL 210.20 (1) (c) and 210.35 (5).
Accordingly, the order of the Appellate Division should be reversed, and the indictment dismissed with leave to the People to re-present if they be so advised.