Opinion
February 4, 1971
Peter L. Maroulis for defendant.
Albert M. Rosenblatt, District Attorney ( James V. Brands of counsel), for plaintiff.
Defendant Milton Frank moves by notice of motion, supporting affidavit of his attorney and numerous exhibits for an order (a) granting him leave to inspect the minutes of the Dutchess County Grand Jury which indicted him on June 3, 1969 in three-count Indictment No. 60/69 for the commission of certain crimes involving a dangerous drug and possession of an implement adapted for the administering of a narcotic drug, and (b) dismissing the indictment thus returned against him, and (c) for such other and further relief as to this court may seem just and proper, such motion for the aforesaid three reliefs being brought upon the eight enumerated grounds set forth in the notice of motion.
The court has examined the minutes of the Grand Jury ( People v. Howell, 3 N.Y.2d 672), as is proper in a motion to inspect, and from such examination the court finds that the indictment is predicated upon insufficient legal evidence in the record to warrant a conviction of the defendant for the crimes charged.
The record before the Grand Jury was devoid of sufficient legal proof to establish that the defendant possessed a dangerous drug or an implement adapted to administer the same, since the corpus of the alleged crimes, namely, the purported canabis, stimulant and depressant drug, and implement, was not received in evidence, or even offered in evidence.
This court believes that the nature of the crimes alleged in this indictment requires the introduction into evidence of a legally acceptable chemical analysis of the corpus of the crime (Code Crim. Pro., § 248), as well as the receipt in evidence of the corpus itself, in order to establish a chain of evidence linking the defendant to the crime.
An indictment must be founded upon legal evidence (Code Crim. Pro., § 249), and since such evidence against Milton Frank is insufficient for the reasons aforesaid, the indictment will be dismissed in the inherent power of the court; however, the court grants leave to the District Attorney to resubmit the case to the same or another Grand Jury for proper proof of the corpus of the alleged crimes.
For the foregoing reasons, the indictment is dismissed in accordance with this decision.