Penal Law § 240.45(2) is directed at persons who knowingly "conduct[ ] or maintain[ ]" any premises where people "gather for purposes of engaging in unlawful conduct." The statute "generally refers to acts of continuing duration or to a continuing condition" ( People v. Gallucci , 62 AD2d 1129, 1132 [1978] ; see William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 240.45, p. 147; see alsoPeople v. Fiedler , 31 NY2d 176 [1972] ). The pleaded facts, while sufficient to infer an isolated misuse of the premises, was insufficient to show that the premises were used "with some degree of regularity" as a place where others gathered in order to participate in illegal conduct ( People v. Fiedler , 31 NY2d at 181 ; cf.People v. Monday , 309 AD2d 977 [2003] [evidence was sufficient to support criminal nuisance conviction where there was evidence of drug sales from the premises for approximately two months, two or three times a week] ).
cepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL 70.10). The evidence must be viewed in the light most favorable to the People and exculpatory evidence need not be considered (People v. Warner-Lambert Co., 51 N.Y.2d 295, 299, cert denied 450 U.S. 1031). The proof need not establish guilt beyond a reasonable doubt (Bellacosa, Practice Commentary, McKinney's Cons Laws of N.Y., Book 11A, CPL 70.10, at 705, 706), or even "reasonable cause" to believe that the defendant committed the crime charged (People v. Warner-Lambert Co., supra, at 299; People v. Dorsey, supra, at 126; Bellacosa, Practice Commentary, McKinney's Cons Laws of N.Y., Book 11A, CPL 70.10, at 705, 706). An indictment is presumptively valid and should not be dismissed absent a clear showing by the defendant that the evidence before the Grand Jury, even if unexplained or uncontradicted, would not warrant conviction of that offense or any lesser included offense (People v. Gallucci, 62 A.D.2d 1129, 1130). In addition to the requirement of "circumstances evincing a depraved indifference to human life" contained in the statute for second degree murder (Penal Law § 125.25), defendant must be shown to have "recklessly engage[d] in conduct which creates a grave risk of death * * * and thereby causes the death of another person" (Penal Law § 125.25). Recklessness is awareness of and conscious disregard of a substantial and unjustifiable risk (Penal Law § 15.05).
Defendant was paid a deposit and was to collect a fee for these services at the end of the night. Unlike People v Gallucci ( 62 A.D.2d 1129), the testimony at trial, obviously credited by the jury, plainly established the promotion of prostitution in a commercial and organized manner. Indeed, even under the provisions of the Penal Law of 1909, a conviction might well have been sustained ( see, People v Moore, 142 App. Div. 402, affd 201 N.Y. 570; cf. People v Draper, 169 App. Div. 479, 491, supra [no fee received]; People v Odierno, 166 Misc. 108).
In each case, there was prima facie evidence of a "protracted loss or impairment of the function of any bodily organ" (see Penal Law, § 10.00, subd 10). ¶ In any event, it was not necessary for the evidence to establish serious physical injury, so long as it established the lesser included offenses requiring merely physical injury ( People v. Gallucci, 62 A.D.2d 1129; People v. Leichtweis, 59 A.D.2d 383). Bracken, J.P., O'Connor, Niehoff and Boyers, JJ., concur.
It is clear, both from the reading of the New York statute and the reading of Trinci and Jelke that none is controlling of the instant case. This court also finds the case of People v. Gallucci, 62 A.D.2d 1129, 404 N.Y.S.2d 768 (1978), which involved insufficiency of the evidence to convict an accused under the New York Statute for promoting prostitution arising from a stag party, is not controlling. In attempting to determine the legislative intent of §§ 567.010 and 567.050, the court has considered and found the comments to those sections to be persuasive.
Memorandum: The People appeal from an order dismissing two counts of an indictment charging the defendant with attempted rape in the first degree (Penal Law, § 110.00, 130.35 Penal) and sexual abuse in the first degree (Penal Law, § 130.65) on the ground that there was insufficient evidence to support those counts. A Grand Jury indictment is presumptively valid (People v. Waterman, 9 N.Y.2d 561, 565; People v. Rallo, 46 A.D.2d 518, 527, affd 39 N.Y.2d 217) and should not be dismissed absent a clear showing by the defendant that the evidence before the Grand Jury, even if unexplained or uncontradicted, would not warrant conviction by a trial jury (People v. Sacco, 64 A.D.2d 324, 327; People v Gallucci, 62 A.D.2d 1129, 1130). In reviewing an order dismissing an indictment for insufficiency, the evidence must be viewed in the light most favorable to the People (People v. Warner-Lambert Co., 51 N.Y.2d 295; People v. Sacco, supra, p 327). Application of those principles to the facts before us requires reinstatement of the two counts which were dismissed. The complainant testified before the Grand Jury that the defendant grabbed her, knocked her to the ground and straddled her. Keeping one hand over her mouth, he first tried to unbutton her jeans, then tried to pull them apart.
CPL 70.10 (subd 1) defines "legally sufficient evidence" as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent" (emphasis added). Courts have applied these rules to require that an indictment should be dismissed where the evidence before the Grand Jury would not warrant conviction by a trial jury (see, e.g., People v. Sacco, 64 A.D.2d 324, 327; People v. Gallucci, 62 A.D.2d 1129, 1130). Here, by the plain language of section 130.16, corroboration is "required by law" for conviction; absent such corroboration, the evidence cannot be "legally sufficient to establish the offense charged."
The People contend that the evidence presented to the Grand Jury was sufficient to support the charges in the indictment because it established defendant's possession of the weapons. A Grand Jury indictment should not be dismissed absent a clear showing by defendant that the evidence before the Grand Jury, even if unexplained or uncontradicted, would not warrant conviction by a trial jury (People v Gallucci, 62 A.D.2d 1129, 1130). Moreover, on an appeal from an order dismissing an indictment for insufficiency of Grand Jury evidence, the facts should be viewed in the light most favorable to the People (People v Shanklin, 59 A.D.2d 588; cf. People v Cohen, 43 N.Y.2d 872).
A careful analysis of the acts attributed to the defendant in the case at bar fails to convince this court that criminal nuisance is a proper charge. One distinguishing element of nuisance is that it requires a continuing condition (People v Gallucci, 62 A.D.2d 1129 [4th Dept 1978]), as opposed to an isolated act that more properly falls under disorderly conduct. Indeed the drafters, recognizing that the two crimes were similar, specifically noted in the Commission Staff Notes to the revised Penal Law that, "[g]enerally speaking * * * disorderly conduct relates to a specific act or acts of brief duration while nuisance involves the creation or maintenance of a continuing condition."
The defendant is also confronted with other general rules of law. "A Grand Jury indictment is presumptively valid". (People v Gallucci, 62 A.D.2d 1129, 1130.) When a crime is divided into several degrees, "the gravity of the offense is an issue of fact" (People v Dunleavy, 41 A.D.2d 717, affd without opn 33 N.Y.2d 573).