Opinion
April 28, 1995
Appeal from the Monroe County Court, Maloy, J.
Present — Green, J.P., Lawton, Fallon, Callahan and Boehm, JJ.
Order unanimously reversed on the law, motion denied, indictment reinstated and matter remitted to Monroe County Court for further proceedings on the indictment. Memorandum: County Court erred in dismissing the indictment. The surviving victim testified before the Grand Jury that he and his cousin were shot by a man whom he had identified at the preliminary hearing as defendant. A witness to the shooting also testified that defendant was the perpetrator. The People presented the records of the medical examiner showing that the surviving victim's cousin died from a gunshot wound to the chest. That evidence, viewed in the light most favorable to the People, is legally sufficient to support the indictment (see, People v Jennings, 69 N.Y.2d 103, 114-116; People v Deegan, 69 N.Y.2d 976, 978-979). The prosecutor's failure to present exculpatory evidence that the surviving victim had not identified defendant from a photographic array and that the witness had recanted his earlier statement that defendant was the perpetrator does not render the Grand Jury proceeding defective (see, People v Morris, 204 A.D.2d 973, lv denied 83 N.Y.2d 1005; see also, People v Mitchell, 82 N.Y.2d 509, 515). Such evidence merely relates to credibility, a collateral issue that generally does not materially influence a Grand Jury investigation (see, People v Perry, 187 A.D.2d 678, lv denied 81 N.Y.2d 891; People v Kaba, 177 A.D.2d 506, 508, lv denied 79 N.Y.2d 859).