Opinion
May 31, 1988
Appeal from the Supreme Court, Queens County (Kohn, J.).
Ordered that the order is reversed, on the law, that branch of the defendant's motion which was to dismiss the indictment on the ground that the evidence before the Grand Jury was not legally sufficient is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.
The defendant did not make a clear showing that the evidence presented to the Grand Jury, when viewed in the light most favorable to the People, was not legally sufficient to establish that the driver of the blue truck in question was the shooter and that the defendant was the driver of the blue truck (see, People v Adorno, 112 A.D.2d 308). Contrary to the defendant's contention, in a wholly circumstantial case the evidence before the Grand Jury need not exclude to a moral certainty every hypothesis consistent with innocence (People v Deegan, 69 N.Y.2d 976; People v Jennings, 69 N.Y.2d 103). Thus the court erred in dismissing the indictment under CPL 210.20 (1) (b).
The alternative ground raised by the defendant for affirming the order dismissing the indictment may not be considered on this appeal by the People (CPL 470.15; People v Goodfriend, 64 N.Y.2d 695; People v Heizman, 127 A.D.2d 609, lv denied 69 N.Y.2d 950). Thompson, J.P., Brown, Weinstein and Harwood, JJ., concur.