| People v Elwood |
| 2009 NY Slip Op 03642 [62 AD3d 1046] |
| May 7, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Roger G.Elwood, Respondent. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Dowd, J.), entered June 3, 2008 inChenango County, which granted defendant's motion to dismiss the indictment.
Defendant was indicted for sexual abuse in the first degree and endangering the welfare of achild based upon alleged conduct involving the touching of the buttocks of a young girl (born in2000). He moved to dismiss the indictment on the ground that the evidence before the grand jurywas not legally sufficient. Supreme Court granted the motion, finding that the evidence wasinsufficient to support an inference that the touching was made for sexual gratification. ThePeople appeal.
We need not address whether the People's cursory presentation before the grand jury wassufficient as regards the issue of an inference of sexual gratification. Although the evidence isviewed in the light most favorable to the People (see People v Swamp, 84 NY2d 725,730 [1995]; People v O'Neill, 285 AD2d 669, 670 [2001]) and "sexual gratification canbe inferred from [relevant] circumstances" (People v Stewart, 57 AD3d 1312, 1315 [2008]; see People v Weber, 40 AD3d1267, 1268 [2007], lv denied 9 NY3d 927 [2007]), it is now apparent from thePeople's postindictment submissions that the victim's testimony before the grand jury pertainedto a purported event that occurred in a different county and on a different date than the alleged[*2]crimes for which defendant was indicted. Given the lack oflucidity in the grand jury minutes as to where the alleged incident occurred and the confusion onsuch issue that came to light after defendant had been indicted, we agree with Supreme Courtthat dismissal is appropriate. We grant the People's request, however, to modify to make clearthat the dismissal is without prejudice to the People re-presenting the charges to another grandjury (see People v Concepcion, 167 AD2d 413, 413 [1990]; see also People v Barabash, 18 AD3d474, 474 [2005]).
Cardona, P.J., Peters, Kane and McCarthy, JJ., concur. Ordered that the order is modified, asa matter of discretion in the interest of justice, by adding a provision thereto granting leave to thePeople to re-present the charges to another grand jury, and, as so modified, affirmed.