Opinion
November 10, 1986
Appeal from the Cattaraugus County Court, Sprague, J.
Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.
Order unanimously reversed, on the law, motion denied, and indictment reinstated. Memorandum: The People appeal from an order dismissing an indictment which charged defendant with 10 counts of grand larceny in the second degree (Penal Law § 155.35) and nine counts of issuing a bad check (Penal Law § 190.05). Defendant, an accountant, was charged with swindling large sums of money from his friends and clients during a four-year period. The hearing court, after reviewing the Grand Jury minutes in camera, concluded that the cumulative effect of the admission of hearsay and opinion evidence coupled with inadequate legal instructions mandated dismissal of the indictment. We disagree.
Viewing this record in the light most favorable to the People (People v Warner-Lambert Co., 51 N.Y.2d 295, 299, cert denied 450 U.S. 1031), we conclude that the evidence before the Grand Jury, if unexplained and uncontradicted, would warrant conviction by a trial jury (People v Dunleavy, 41 A.D.2d 717, affd 33 N.Y.2d 573; People v Lancaster, 114 A.D.2d 92, lv granted 67 N.Y.2d 945; People v Potwora, 44 A.D.2d 207, 210), and that the Grand Jury was properly instructed on the substantive law (see, People v Goetz, 68 N.Y.2d 96, 115-116; People v Calbud, Inc., 49 N.Y.2d 389, 394-395). Therefore, it was error for the court to dismiss the indictment on grounds other than legal insufficiency since defendant had only raised the sufficiency of evidence and prosecutorial misconduct in his motion to dismiss the indictment (People v Novack, 74 A.D.2d 652).