Opinion
August 4, 1986
Appeal from the Supreme Court, Queens County (Rotker, J.).
Order reversed insofar as appealed from, on the law, the aforementioned branch of the motion denied, the first count of the indictment reinstated, and matter remitted to the Supreme Court, Queens County, for further proceedings.
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 supported by legally sufficient evidence. "In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt" (People v Mayo, 36 N.Y.2d 1002, 1004). "Evidence before a Grand Jury is sufficient to sustain an indictment when the sum of the competent and admissible evidence, if unexplained and uncontradicted, would warrant a conviction after trial" (People v Williams, 110 A.D.2d 798, 799; see also, People v Deitsch, 97 A.D.2d 327, 329). Here, the evidence before the Grand Jury of the defendant's recent and unexplained possession of stolen property, in close proximity to the scene of the crime (see, People v Baskerville, 60 N.Y.2d 374, 382-383; Knickerbocker v People, 43 N.Y. 177, 181-182; People v Bergerson, 105 A.D.2d 867, 868), was sufficient to establish a prima facie case of burglary in the second degree and, if unexplained and uncontradicted, to warrant a conviction after trial on that charge (see, People v Morales, 113 A.D.2d 956; People v La Furno, 104 A.D.2d 1008; People v Martin, 78 Misc.2d 1087). A police officer testified that when he responded to a burglary radio run he observed the defendant exiting the premises with the fruits of the crime in hand. The stolen property was identified by the owner who testified that he did not know the defendant and did not give him permission to enter his house or to possess his property. Accordingly, the first count of the indictment was supported by legally sufficient evidence and is reinstated. Gibbons, J.P., Bracken, Niehoff and Kunzeman, JJ., concur.