A state judge dismissed Thursday the sexual assault indictment against Honolulu police officer Nicholas K.H. Masagatani.

The indictment charged Masagatani, 30, an eight-year Honolulu Police Department veteran, with two counts of second-degree sexual assault and one of attempted fourth-degree sexual assault.

Circuit Judge Dean Ochiai dismissed the indictment because of what he said were procedural defects during testimony to the grand jury that returned the indictment. The dismissal is without prejudice, which gives the state the opportunity to seek a new indictment, which it intends to do.

Masagatani sought the dismissal because he claims the actions by the deputy city prosecutor who presented the case violated his constitutional right to a fair and impartial grand jury.

The grand jurors heard testimony in December from two witnesses: the alleged victim and the HPD detective who investigated the case, according to the transcript of the proceeding. The alleged victim testified first, followed by the detective. After hearing from the detective, the grand jurors asked the state to recall the alleged victim because several of them wanted to ask her questions.

Masagatani’s lawyer Richard Sing said in a hearing earlier this month that based on the grand jurors’ questions, they had concerns over the alleged victim’s credibility. He said that Deputy City Prosecutor Lynn Costales prevented the alleged victim from answering some of the grand jurors’ questions or answered for her.

Costales said she was trying to maintain the integrity of the proceeding. She said some of the questions were improper because they were, in effect, asking the alleged victim to confirm or deny what was in Masagatani’s statement to the detective. She said she cut off one grand juror who she said kept asking the same question over and over.

"They (grand jurors) don’t have a right to harass her," Costales said, "We could have been there all day long."

Ochiai said the questions should have been directed to the independent grand jury counsel, a court-appointed lawyer whose function is to receive and respond to inquiries from the grand jury on matters of law.

HPD says Masagatani remains on restricted duty while the department conducts an administrative investigation.