PEOPLE v. OLIVO (1999)

 County Court erred in granting defendant's motion to dismiss the indictment on the ground that the evidence was legally insufficient to support the charge of promoting prison contraband in the first degree (Penal Law § 205.25[2] ).   On a motion to dismiss an indictment based on legally insufficient evidence, the issue is whether the evidence before the Grand Jury establishes a prima facie case (see, People v. Jensen, 86 N.Y.2d 248, 251, 630 N.Y.S.2d 989, 654 N.E.2d 1237).   Where, as here, the case presented to the Grand Jury is based solely upon circumstantial evidence, our inquiry is limited to whether “the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crime[ ].  That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference” (People v. Deegan, 69 N.Y.2d 976, 979, 516 N.Y.S.2d 651, 509 N.E.2d 345;  see, People v. Canale, 240 A.D.2d 839, 840, 658 N.Y.S.2d 715).   A correction officer testified before the Grand Jury that he observed defendant and another inmate exchange a handshake and a pat on the back and that, as they separated, that inmate had a clenched fist, which he inserted into his pocket.   He further testified that an immediate search of that inmate's pocket disclosed two razor blades fashioned into a weapon.   That testimony, viewed in the light most favorable to the People (see, People v. Jennings, 69 N.Y.2d 103, 114, 512 N.Y.S.2d 652, 504 N.E.2d 1079), is sufficient to support the inference that defendant passed the contraband to that other inmate.   On this appeal by the People, we have no power to consider defendant's alternative argument for affirmance (see, People v. Karp, 76 N.Y.2d 1006, 1008, 565 N.Y.S.2d 751, 566 N.E.2d 1156;  People v. Goodfriend, 64 N.Y.2d 695, 697-698, 485 N.Y.S.2d 519, 474 N.E.2d 1187;  People v. Vallone, 140 A.D.2d 729, 730, 529 N.Y.S.2d 38).

Order unanimously reversed on the law, motion denied, indictment reinstated and matter remitted to Livingston County Court for further proceedings on the indictment.

MEMORANDUM: