People v. Cruz

84 A.D.2d 962, 446 N.Y.S.2d 721, 1981 N.Y. App. Div. LEXIS 16241

Opinion

Order unanimously reversed and motion denied. Memorandum: In this one count indictment charging defendant with criminal mischief in the third degree, the court erred in modifying the indictment to criminal mischief in the fourth degree upon defendant’s motion to inspect the Grand Jury minutes and reduce the charge in the indictment. CPL 210.20 (subd 1, par [b]) in pertinent part provides that the court may dismiss an indictment when the evidence before the Grand Jury was not legally sufficient to establish the offense charged or any' lesser included offense. There is no authority to reduce the charge in the indictment to the lesser included offense (see People v Maier, 72 AD2d 754). The defendant’s motion should be denied and the indictment reinstated. (Appeal from order of Livingston County Court, Houston, J. — modify indictment.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Moule, JJ.