People v. Duca

172 A.D.2d 1054, 569 N.Y.S.2d 308, 1991 N.Y. App. Div. LEXIS 6326

Opinions

Order reversed on the law, motion denied, indictment reinstated and matter remitted to Supreme Court for further proceedings on the indictment. Memorandum: When reviewing a claim of insufficiency, the evidence before the Grand Jury must be viewed in the light most favorable to the People and the test is whether the evidence, if unexplained and uncontradicted, would warrant conviction by a petit jury (see, People v Jennings, 69 NY2d 103, 114; People v Pelchat, 62 NY2d 97, 105). Thus viewed, the evidence is sufficient to support the conclusion that defendant was the owner of or resided in the home, the search of which, pursuant to a search warrant, resulted in the discovery of a large quantity of marihuana.

We do not agree with Supreme Court’s further conclusion that the integrity of the Grand Jury was impaired because the prosecutor excused a grand juror from voting after the juror revealed that he knew defendant and felt that he could not be fair and impartial on this particular case. Because this juror was not discharged from service, action by the court was not necessary (see, CPL 190.20 [2] [b]). Moreover, defendant wholly failed to demonstrate any prejudice from this action (see, People v Darby, 75 NY2d 449, 454).

All concur, except Green and Lowery, JJ., who dissent and vote to affirm, in the following Memorandum.