Opinion
2001-02978
Argued November 4, 2002.
December 2, 2002.
Appeal by the People, as limited by their brief, from so much of an order of the County Court, Orange County (DeRosa, J.), dated March 13, 2001, as granted the defendant's oral application to dismiss the indictment to the extent of reducing the charge of burglary in the second degree, contained in count one of the indictment, to a charge of criminal trespass in the second degree.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for appellant.
Malvina Nathanson, New York, N.Y., for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, CORNELIUS J. O'BRIEN, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, the charge of burglary in the second degree contained in count one of the indictment is reinstated, and the matter is remitted to the County Court, Orange County, for further proceedings.
The County Court erred in reducing count one of the indictment charging burglary in the second degree to criminal trespass in the second degree. Viewing the evidence before the Grand Jury in the light most favorable to the prosecution (see People v. Manini, 79 N.Y.2d 561), we find that it was legally sufficient to support the charge of burglary in the second degree. The Grand Jury could properly infer the defendant's intent to commit some crime from the surrounding circumstances (see People v. Mahboubian, 74 N.Y.2d 174; People v. Mitchell, 231 A.D.2d 937; People v. Mazer, 208 A.D.2d 956; People v. Owens, 204 A.D.2d 1055; People v. Gates, 170 A.D.2d 971; People v. Daye, 150 A.D.2d 481).
We do not consider the defendant's alternative argument for affirmance of the order appealed from (see People v. Karp, 76 N.Y.2d 1006; People v. Goodfriend, 64 N.Y.2d 695). Further, we note that the defendant was not entitled to a copy of the Grand Jury minutes on this appeal (see Matter of Brown v. LaTorella, 229 A.D.2d 391).
FEUERSTEIN, J.P., SMITH, O'BRIEN and ADAMS, JJ., concur.