| People v Jessup |
| 2011 NY Slip Op 09151 [90 AD3d 782] |
| December 13, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Cleveland Jessup, Respondent. |
—[*1] Thomas J. Lavallee, Hauppauge, N.Y., for respondent.
Appeals by the People from (1) an order of the County Court, Suffolk County (Kahn, J.),dated October 21, 2010, which granted the defendant's motion pursuant to CPL 210.20 to dismissthe indictment charging him with sexual abuse in the first degree and endangering the welfare ofa child, on the ground that the evidence before the grand jury was legally insufficient, and (2), aslimited by their brief, from stated portions of an order of the same court dated December 20,2010.
Ordered that the order dated October 21, 2010, is reversed, on the law, the defendant'smotion to dismiss the indictment is denied, the indictment is reinstated, and the matter is remittedto the County Court, Suffolk County, for further proceedings; and it is further,
Ordered that the appeal from the order dated December 20, 2010, is dismissed as academic inlight of our determination on the appeal from the order dated October 21, 2010.
"To dismiss an indictment on the basis of insufficient evidence before a Grand Jury, areviewing court must consider 'whether the evidence viewed in the light most favorable to thePeople, if unexplained and uncontradicted, would warrant conviction by a petit jury' " (Peoplev Bello, 92 NY2d 523, 525 [1998], quoting People v Jennings, 69 NY2d 103, 114[1986]; see People v Barabash, 35AD3d 873, 874 [2006]). Legally sufficient evidence is defined as "competent evidencewhich, if accepted as true, would establish every element of an offense charged and thedefendant's commission thereof" (CPL 70.10 [1]; see People v Deitsch, 97 AD2d 327,329 [1983]). "In the context of a Grand Jury proceeding, legal sufficiency means prima facieproof of the crimes charged, not proof beyond a reasonable doubt" (People v Bello, 92NY2d at 526; see People v Galatro, 84 NY2d 160, 164 [1994]). Thus, "[t]he reviewingcourt's inquiry is limited to whether the facts, if proven, and the inferences that logically flowfrom those facts supply proof of every element of the charged crimes, and whether the GrandJury could rationally have drawn the guilty inference" (People v Bello, 92 NY2d at 526[internal quotation marks omitted]).
Here, the evidence presented to the grand jury, viewed in the light most favorable to [*2]the People, was legally sufficient to establish the charges in theindictment. The evidence before the grand jury, if accepted as true, established that the defendantwas alone with his four-year-old grandnephew in the defendant's bedroom with the door closed,that the child was on top of the defendant while the defendant's penis was exposed, that the childtouched the defendant's penis, and that the defendant immediately pushed the child off of his lapwhen the bedroom door was unexpectedly opened by the child's mother and great-aunt. Further,the grand jury could have reasonably inferred from the evidence that the touching constitutedsexual contact because it was for the purpose of gratifying the sexual desire of the defendant,which is a required element of the crime of sexual abuse in the first degree (see PenalLaw § 130.00 [3]; § 130.65 [3]). Since the grand jury could have rationally drawnsuch an inference, the fact that the evidence presented is susceptible of other inferences as to thetouching that occurred is irrelevant (seePeople v Campbell, 69 AD3d 645, 646 [2010]; see generally People v Jensen,86 NY2d 248, 252 [1995]). Thus, there was legally sufficient evidence to establish the charge ofsexual abuse in the first degree (see Penal Law § 130.65 [2]).
In addition, viewing this same evidence in the light most favorable to the People, suchevidence, if found to be true, and its logical inferences would establish that the defendantknowingly acted in a manner likely to be injurious to the child's physical, mental, or moralwelfare. Thus, it was legally sufficient to establish the charge of endangering the welfare of achild (see Penal Law § 260.10 [1]).
Accordingly, the County Court erred in granting the defendant's motion pursuant to CPL210.20 to dismiss the indictment. Skelos, J.P., Balkin, Eng and Sgroi, JJ., concur.