Opinion
April 30, 1990
Appeal from the Supreme Court, Queens County (Friedmann, J.).
Ordered that the orders are reversed insofar as appealed from, on the law, those branches of the defendants' separate motions which were to dismiss indictment number 649/89 against them are denied in their entirety, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the indictment.
Pursuant to CPL 210.20 (1) (b), the court may dismiss the indictment where "[t]he evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense" (see also, CPL 210.30; People v. Deitsch, 97 A.D.2d 327). The evidence is deemed to be legally sufficient where there is competent evidence which, if accepted as true, establishes every element of the offense charged or a lesser included offense and the defendant's commission thereof (see, CPL 70.10; People v. Deitsch, supra). The standard does not require proof beyond a reasonable doubt (see, People v. Mayo, 36 N.Y.2d 1002), and the burden is on the defendant to make a clear showing of insufficiency (see, People v. Howell, 3 N.Y.2d 672). Moreover, the court is required to examine the evidence in the light most favorable to the People (see, People v. Warner-Lambert Co., 51 N.Y.2d 295, 299).
Keeping these principles in mind, our review of the record leads us to the conclusion that there existed legally sufficient evidence before the Grand Jury to support the attempted robbery charges and the murder charge. The testimony before the Grand Jury indicated that the defendants approached the victim armed with sticks, which they used to assault him. The testimony also showed that at the commencement of the assault, one of the defendants told another member of their group to take the victim's bicycle, and that the defendants continued to hit and chase the victim out into the street, where he was struck by a car and killed. Thus, there was sufficient evidence for the Grand Jury to conclude that the defendants assaulted the victim with the intention to rob his bicycle, and that during the course of the attempted robbery, the victim was killed.
With respect to the charge of manslaughter in the first degree, we would note that by refusing to hold that there was insufficient evidence to support the third count of the indictment which charged the defendants with manslaughter in the second degree (Penal Law § 125.15), the court necessarily concluded that the evidence was legally sufficient to support that charge, which is a lesser included offense of manslaughter in the first degree (Penal Law § 125.20; see, People v Rodriguez, 144 A.D.2d 273, 275; People v. Carter, 137 A.D.2d 826, 827; see also, People v. Green, 56 N.Y.2d 427, 432-433). That being so, it was error for the court to dismiss the second count of the indictment which charged the defendants with manslaughter in the first degree (see, CPL 210.20 [b]; People v. Reyes, 148 A.D.2d 756, 758). Sullivan, J.P., Harwood, Balletta and Miller, JJ., concur.