People v. Stahl

176 A.D.2d 974

Opinion

— Appeal by the People from an order of the County Court, Suffolk County (Tisch, J.), dated September 6, 1990, which granted the defendant’s motion to dismiss the indictment.

Ordered that the order is affirmed.

Upon our review of the evidence presented to the Grand Jury, we find that the indictment, which charged two counts of attempted burglary in the first degree, was not supported by legally sufficient evidence. In the context of a Grand Jury proceeding, the sufficiency of the People’s presentation is determined by inquiring into whether the evidence, viewed in the light most favorable to the People, 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; People v Flores, 122 AD2d 806). Although the evidence presented to the Grand Jury, when viewed in such a light, established that the defendant intended to unlawfully enter the complainant’s residence, the evidence failed to establish that the defendant’s intent to commit the crime of burglary came within "dangerous proximity” of fruition (see, People v Mahboubian, 74 NY2d 174, 190; People v Bracey, 41 NY2d 296, 299). Accordingly, the dismissal of the indictment was proper. Bracken, J. P., Harwood, Eiber and Rosenblatt, JJ., concur.