Opinion
July 14, 1992
Appeal from the Ontario County Court, Henry, Jr., J.
Present — Callahan, J.P., Green, Lawton, Boehm and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant, by entering an Alford plea to a reduced charge, forfeited his right to appellate review of his argument that the court erred in denying his motion to dismiss the indictment upon the ground that it was jurisdictionally defective because it was based on legally insufficient evidence pursuant to CPL 210.20 (1) (b) and 210.30 (see, People v. Pelchat, 62 N.Y.2d 97; People v. Del Carpio, 166 A.D.2d 605, 606, lv denied 76 N.Y.2d 1020; see also, People v Kazmarick, 52 N.Y.2d 322, 326; People v. Clairborne, 29 N.Y.2d 950, 951; People v. Pullano, 185 A.D.2d 628 [decided herewith]; People v. Gonzalez, 177 A.D.2d 961). None of the exceptions enunciated in People v. Pelchat (supra, at 106) is applicable to this case. In any event, "[s]ince the Grand Jury performs the limited function of determining whether the People have in their possession sufficient evidence to present a prima facie case, the submission of some inadmissible evidence during the course of this proceeding is held to be fatal only when the remaining legal evidence is insufficient to sustain the indictment" (People v Avant, 33 N.Y.2d 265, 271). The court correctly denied defendant's motion because the remaining evidence before the Grand Jury, viewed in the light most favorable to the People, if unexplained and uncontradicted, was legally sufficient to warrant a conviction by a petit jury (see, People v. Jennings, 69 N.Y.2d 103, 114; People v. Pelchat, supra, at 105).