People v. Philips

131 A.D.2d 515, 516 N.Y.S.2d 122, 1987 N.Y. App. Div. LEXIS 47970

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1987
• Status: Published

Opinion

Appeal by the People from so much of an order of the Supreme Court, Queens County (Chetta, J.), dated June 4, 1986, as granted that branch of the defendant’s motion which was to dismiss the indictment to the extent of dismissing counts one through six of the indictment charging the defendant with two counts of attempted robbery in the first degree, two counts of attempted burglary in the first degree, and two counts of attempted assault in the first degree.

Ordered that the order is affirmed insofar as appealed from.

A review of the Grand Jury minutes reveal that the acts of the defendant did not carry the planned crimes " 'forward within dangerous proximity to the criminal end to be [allowed]’ ” (People v Bracey, 41 NY2d 296, 300), nor were the acts of the defendant " 'very near to the accomplishment of the intended crime’ ” (People v Di Stefano, 38 NY2d 640, 652, quoting from People v Rizzo, 246 NY2d 334, 337), so as to sufficiently support the counts in the indictment charging him with attempted robbery in the first degree, attempted burglary in the first degree, and attempted assault in the first degree (cf., People v Trepanier, 84 AD2d 374). Therefore, the Supreme Court properly dismissed those counts of the indictment. Weinstein, J. P., Eiber, Spatt and Sullivan, JJ., concur.