Defendant John Cornish is charged with one count of Burglary in the Second Degree (Penal Law § 140.25[2]). Defendant has requested that the Court inspect the grand jury minutes, and has moved to dismiss or reduce the indictment on the grounds that the proceedings were defective, the evidence before the grand jury was legally insufficient and the indictment is defective (CPL §§ 210.20[1], 210.25, 210.30 and 210.35).

Legally sufficient evidence is defined as competent evidence, which, if accepted as true, would establish every element of an offense charged (CPL § 70.10[1]). In the context of a grand jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt (People v Bello, 92 NY2d 523, 526 [1998]; People v Mayo, 36 NY2d [*2]1002, 1004 [1975]). The reviewing court's inquiry is limited to determining whether the evidence presented was legally sufficient; the court is not to weigh the evidence or examine its adequacy (People v Jensen, 86 NY2d 248, 252 [1995]).

The indictment alleges that the defendant knowingly entered or remained unlawfully in a dwelling located at 714 Eastbrooke Lane with intent to commit a crime therein (PL § 140.25[2]). The evidence consisted almost solely of two fingerprints: one lifted from the exterior of a sliding glass door located at the rear of the dwelling and the other lifted from the door frame. Each fingerprint matched a sample taken from the defendant. Other prints were lifted from the door as well, including a palm print, which did not match the defendant's. Also, the screen in front of the glass door had been cut, the door had been knocked off its track, and a wooden bar or dowel which had been placed behind the slider to prevent it from being opened was out of place. A safe in the bedroom had been removed. No prints were recovered from the area around the safe or anywhere else. The technician could not give a time frame as to how long the prints on the sliding glass door had been there.

The victim testified that the defendant had been to his house on numerous occasions, as had other persons, and that he had shown the defendant the safe. Defendant testified as well, and denied stealing the safe. He confirmed that he had been to the victim's house on several occasions, most recently, about six days before the break-in, and had on those times gone in and out of the sliding glass door, which led to a porch or deck.

The evidence is wholly circumstantial, and accordingly, the court must determine "whether the facts, if proven, and the inferences that logically flow from those facts, supply proof of every element of the charged crimes" (People v. Deegan, 69 NY2d 976, 979 [1987]). The defendant's fingerprints on the exterior of the sliding glass door and any inferences that logically flow from that fact do not supply proof of every element of the crime of Burglary in the Second Degree (see People v Jacob, 55 AD2d 961, 961—62 [2d Dept 1977]). The inference that the defendant stole the safe flows no more logically than the conclusion that one of the many other persons who had visited the residence and had touched the sliding glass door had stolen the safe. The fingerprint match did not exclude the probability that the other fingerprints would have matched to other friends of the victim.

Accordingly, the Grand Jury minutes were insufficient even when viewed in the light most favorable to the People.

Moreover, the integrity of the proceedings was impaired by the receipt of testimony that would have been inadmissible if given at trial.

The victim Ryan Casler testified that he spoke to the defendant about the break-in at his house and after the conversation he "determined that it was most likely him [the defendant] who had done it". The victim also testified that he told the defendant about the break-in and theft, and that the defendant "responded in a very odd way . He didn't seem to respond in the way I would have thought I would have responded if he had said the same thing to me." This testimony was entirely improper as it contained impermissible opinion and state of mind testimony. The Grand Jury should have been told to disregard the testimony (see CPL § 190.30[7]). It wasn't.

Officer Stephen Hunt testified to statements made to him by one David Willford, who had been with the defendant shortly after the break-in. He was allowed to compare Willford's statements to contradictory statements Willford made at a later occasion. The comparison was intended to show the grand jury that there was an inconsistency as to where the defendant was purported to be at the time of the larceny, and that Willford was somehow covering for him. [*3]Willford's statements were obviously hearsay, and the Grand Jury should have been given an instruction as to how consider such testimony (e.g., not for its truth but for some other purpose), if that was the prosecutor's intent.

While it is true that "the receipt of evidence which might not be admissible at trial does not necessarily impair the integrity of a Grand Jury proceeding" (People v. Taylor, 181 AD2d 408, 409 [1st Dept 1992]), considering the circumstantial and limited nature of the evidence connecting the defendant to the crime charged, the testimony set forth above and the prosecutor's failure to cure it, the integrity of the Grand Jury proceeding was impaired to the extent that the defendant was prejudiced. Dismissal is required (see CPL § 210[35][5]; compare to People v Acomb, 115 AD2d 322 [4th Dept 1985] ["The District Attorney immediately interrupted the statement and instructed the Grand Jury to ignore what the witness had said"]).

Accordingly, it is ORDERED that the defendant's motion is granted and the indictment is hereby DISMISSED.

This constitutes the Decision and Order of the Court.