Edward J. Nowak, Public Defender of Monroe County (
James D. Stevenson of counsel), for defendant.
Howard R. Relin, District Attorney of Monroe County (
Mary W. Randall of counsel), for plaintiff.
OPINION OF THE COURT
FRANK P. GERACI, JR., J. On March 6, 1999, the defendant filed an omnibus motion requesting, among other relief, that the court inspect the Grand Jury minutes and dismiss or reduce various counts of the indictment based upon legal insufficiency of the evidence presented and that the proceedings were defective. The People filed a response alleging that the evidence presented to the Grand Jury was sufficient and the proceeding was proper in all respects. The defendant is charged in a six-count indictment with burglary in the first degree in violation of section 140.30 (1) of the Penal Law of the State of New York, and five counts of grand larceny in the fourth degree in violation of subdivisions (1), (4) (2 counts), (7) and (8) of section 155.30 of the Penal Law. After inspection of the Grand Jury minutes, the court finds that the evidence presented supports all the elements of the charges contained within the second, third, fourth and fifth counts. In count six, the defendant is charged with grand larceny in the fourth degree in violation of Penal Law § 155.30 (8). The indictment alleges that the defendant on or about September 29, 1998, in the County of Monroe, State of New York, did steal property the value of which exceeded $100 and did consist of a motor vehicle belonging to the Dickasons, to wit, a 1987 Ford van. Under Penal Law § 155.30 (8) the value of the motor vehicle stolen must exceed $100. There being no evidence presented to the Grand Jury regarding the value of the van that charge must be dismissed. (See, People v Lopez, 79 NY2d 402; CPL 190.30 [3].) In the first count of the indictment the defendant is charged with burglary in the first degree in violation of section 140.30 (1) of the Penal Law of the State of New York alleging that on or about September 29, 1998, in the County of Monroe, State of New York, the defendant knowingly entered or remained unlawfully in a dwelling with intent to commit a crime therein and when in effecting entry or while in the dwelling or in the immediate flight therefrom, he or another participant in the crime was armed with a deadly weapon, to wit, a .22 caliber derringer. There being insufficient evidence presented to the Grand Jury that the defendant was armed with a deadly weapon, the burglary in the first degree charge contained within the first count of the indictment must be reduced to burglary in the second degree.