Opinion
November 13, 1990
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the order is modified by adding a provision that the dismissal of the first count of the indictment charging burglary in the second degree is without prejudice to the People to re-present that charge to another Grand Jury; as so modified, the order is affirmed insofar as appealed from.
We have reviewed the evidence which was before the Grand Jury and conclude that the first count of the indictment, charging the crime of burglary in the second degree, was not supported by legally sufficient evidence. In the context of a Grand Jury proceeding, the sufficiency of the People's presentation is determined by inquiring into whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (see, People v. Jennings, 69 N.Y.2d 103, 144; People v. Pelchat, 62 N.Y.2d 97; People v. Flores, 122 A.D.2d 806).
Although the evidence presented to the Grand Jury established that shortly after the burglary, the defendant was observed in possession of two of the complainant's radios in close proximity to the scene of the crime, the prosecutor failed to instruct the Grand Jury on the inference arising from the recent and exclusive possession of the fruits of a crime (see, People v. Galbo, 218 N.Y. 283). Therefore, that inference was not considered by the Grand Jury in determining that a prima facie case of burglary in the second degree had been presented (see, People v. Bester, 163 A.D.2d 873; People v. Burnett, 149 A.D.2d 717; People v. Felder, 132 A.D.2d 705). Absent the inference, the proof presented was insufficient to establish that the defendant was the individual who committed the subject burglary, and thus the burglary count of the indictment was properly dismissed (see, People v. Whitfield, 158 A.D.2d 922; People v. Burnett, supra; People v. Felder, supra). Eiber, J.P., Harwood, Balletta and O'Brien, JJ., concur.