Defendant moves for dismissal of those counts of the indictment charging him with burglary, robbery, petit larceny and possession of stolen property, on the ground that insufficient evidence was presented to the grand jury (CPL §210.20, 210.30).

The motion is denied.

In reviewing grand jury minutes for legal sufficiency, the court's inquiry is limited to determining whether the evidence is sufficient to establish the elements of the crime and renders it reasonable to believe the defendant is the offender (CPL §190.65). The court is not empowered to re-think the indictment, substitute its opinion, look at extrinsic evidence or even "weigh the proof or examine its adequacy" (People v Galatro, 84 NY2d 160). Instead, the court is limited to deciding whether the grand jury evidence, viewed most favorably to the prosecution, standing alone, would warrant a conviction (People v Jennings, 69 NY2d 103). If on the face of it the [*2]proof is sufficient, the indictment must be sustained (People v Gordon, 88 NY2d 92). The review is not a fact-finding mission (People v Dunleavey, 41 AD2d 717).

In this case, evidence was presented to the grand jury that the defendant went into his former girlfriend's apartment after their break up. He was told to leave and that the relationship was over. Rather than leave he repeatedly punched the complainant causing her to suffer bruises, contusions and severe head and neck pain for an extended period. The defendant also took the complainant's cell phone from her person and then punched her again before leaving the apartment.

The grand jury indicted the defendant. The highest count, Burglary in the First Degree requires the People to establish that the defendant remained in the complainant's dwelling unlawfully, intending to commit a crime and that in the course of it, caused her physical injury. The defense contends the presentation does not in any way establish the defendant's intent to commit a crime and must be dismissed.

In exercising its limited review of the evidence, viewed most favorably to the prosecution, it is clear that the grand jurors could infer that the defendant, when asked to leave, formulated the intent to remain unlawfully in the dwelling to effect the assault on the complainant. This is not unreasonable and establishes the elements of the crime. In fact, the People need not establish what particular crime the defendant intended to commit or that the intended crime was even committed. The intent can be inferred from the circumstances of the presentation, and, as previously mentioned, it is not proper for the court to second guess the grand jury (People v Barnes, 50 NY2d 375; People v Richards, 290 AD2d 584).

Likewise with respect to the counts of Robbery in the First and Second Degrees, Petit Larceny and Criminal Possession of Stolen Property. The defense argues that since the defendant mailed back the cell phone, he did not intend to deprive the complainant of her property and therefore those counts must fall.

Again, under the Court's restricted inquiry, evidence was presented that the defendant took the cell phone and punched the owner of it, causing her physical injury. The grand jurors heard evidence that it was returned by mail and yet chose to indict. Under these facts, the elements of the crimes were established and it is not unreasonable to conclude that, at the time he took it, the defendant intended to deprive her of the phone (People v Jennings, 69 AD2d 103).

Since the evidence presented to the grand jury was legally sufficient to establish a prima facie case the motion must be denied.

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.