         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
94
KA 12-01643
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

FRANK VANALST, ALSO KNOWN AS SHAUN JOHNSON,
DEFENDANT-RESPONDENT.


R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR APPELLANT.

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Ontario County Court (Frederick G.
Reed, A.J.), entered April 9, 2012. The order granted the motion of
defendant to dismiss the indictment.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Ontario County Court for
further proceedings in accordance with the following Memorandum: The
People appeal from an order dismissing the sole count of the
indictment, which charged defendant with criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]),
based on the alleged legal insufficiency of the evidence before the
grand jury. The People contend that County Court applied an incorrect
legal standard in reviewing that evidence. We agree.

     “The grand jury ‘must have before it evidence legally sufficient
to establish a prima facie case, including all the elements of the
crime, and reasonable cause to believe that the accused committed the
offense to be charged’ ” (People v Wyant, 98 AD3d 1277, 1277, quoting
People v Jensen, 86 NY2d 248, 251-252). Legally sufficient evidence
is “competent evidence which, if accepted as true, would establish
every element of an offense charged and the defendant’s commission
thereof” (CPL 70.10 [1]; see People v Swamp, 84 NY2d 725, 730). On a
motion to dismiss an indictment for legal insufficiency (see CPL
210.20 [1] [b]), the court “must consider whether the evidence, viewed
most favorably to the People, if unexplained and uncontradicted . . .
would warrant conviction” (Swamp, 84 NY2d at 730; see Jensen, 86 NY2d
at 251; People v Jennings, 69 NY2d 103, 114). Thus, the foregoing
standard limits the reviewing court to determining whether the
evidence before the grand jury, together with the inferences that
logically flow therefrom, supplies proof of every element of the
charged crimes “and whether ‘the [g]rand [j]ury could rationally have
                                 -2-                            94
                                                         KA 12-01643

drawn the guilty inference’ ” (People v Bello, 92 NY2d 523, 526,
quoting People v Deegan, 69 NY2d 976, 979).

     Here, in dismissing the indictment, the court concluded that the
police were not justified in pursuing defendant when he fled and
thereafter allegedly dropped the narcotics that he was charged with
possessing. That was error. The court did not decide the motion
under the well-established standards set forth above; rather, the
court decided the motion based on its improper determination of a
suppression issue in the context of a motion to dismiss pursuant to
CPL 210.20 (1) (b) (see generally Jensen, 86 NY2d at 251-252). In any
event, it is further well established that, even “[i]f competent prima
facie evidence underlying an indictment is subsequently rendered
inadmissible [after a suppression hearing,] the legal sufficiency of
the indictment is not undermined” (People v Gordon, 88 NY2d 92, 96;
cf. CPL 210.20 [1] [h]).

     We therefore hold the case, reserve decision, and remit the
matter to County Court to determine whether the evidence before the
grand jury is legally sufficient to support the indictment without
regard to the alleged violations of defendant’s rights under the
Fourth Amendment or article I, § 12 of the New York Constitution, and
to determine any remaining issues in connection with defendant’s
request for dismissal of the indictment.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
