        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

485
KA 10-02133
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

JACOB J. MERCER, DEFENDANT-RESPONDENT.


FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Erie County Court (Michael F.
Pietruszka, J.), dated July 21, 2010. The order granted, without
prejudice, the motion of defendant to dismiss the indictment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, that part of the omnibus motion
seeking to dismiss the indictment is denied, the indictment is
reinstated and the matter is remitted to Erie County Court for further
proceedings on the indictment.

     Memorandum: The People appeal from an order granting that part
of defendant’s omnibus motion seeking to dismiss the indictment
charging him with robbery in the first degree (Penal Law § 160.15
[3]). County Court concluded that the People presented legally
insufficient evidence with respect to the identity of the perpetrator.
We agree with the People that reversal is required.

     “In the context of a motion to dismiss an indictment, the
sufficiency of the People’s presentation ‘is properly determined by
inquiring whether the evidence viewed in the light most favorable to
the People, if unexplained and uncontradicted, would warrant
conviction by a petit jury’ ” (People v Galatro, 84 NY2d 160, 163).
The People must establish “that the accused committed the crime
charged by presenting legally sufficient evidence establishing all of
the elements of the crime . . .[,] and the court is not to weigh the
proof or examine its adequacy” (id. at 164).

     “A person is guilty of robbery in the first degree when he [or
she] forcibly steals property and when, in the course of the
commission of the crime or of immediate flight therefrom, he or [she]
. . . [u]ses or threatens the immediate use of a dangerous instrument”
(Penal Law § 160.15 [3]). Here, the evidence before the grand jury
                                 -2-                           485
                                                         KA 10-02133

established that a man stole condoms from a grocery store and
brandished a knife at two store employees while fleeing the crime
scene. Based on the robbery report and description of the perpetrator
from the two store employees, the police located defendant shortly
after the robbery in the vicinity of the store. The officers arrested
him and seized the condoms from his person. A knife matching the
description provided by one of the store employees was found in
proximity to the location where defendant was apprehended. At the
police station, defendant admitted robbing the store, and one of the
store employees identified the knife recovered by the police as the
knife that was used in the robbery. Although the store employees
never identified defendant as the perpetrator, the circumstantial
evidence, when viewed as a whole, was sufficient for the grand jury to
infer that defendant was the perpetrator and that the store employees
and the police officers were testifying with respect to the same
individual (see People v Ngor Yip, 118 AD2d 472, 473-474). We
therefore conclude that the evidence before the grand jury was legally
sufficient to support a prima facie case of robbery in the first
degree (see People v Woelfle, 64 AD3d 1166, 1167-1168, lv denied 14
NY3d 846; Ngor Yip, 118 AD2d at 473-474).




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
