Opinion
September 10, 1990
Appeal from the Supreme Court, Queens County (Lakritz, J.).
Ordered that the order is affirmed.
In determining a motion to dismiss an indictment on the ground of legal insufficiency, the inquiry is whether the evidence, if viewed in the light most favorable to the People and if unexplained and uncontradicted, would warrant conviction by a petit jury (see, People v. Jennings, 69 N.Y.2d 103; People v Scott, 131 A.D.2d 893). Applying this criteria to the case at bar, we find that the evidence was legally insufficient to support the charges in the indictment or any lesser charge (see, CPL 70.10; 210.20 [1] [b]), and the defendant's application was properly granted. Although the defendant failed to comply with the requirements of CPL 210.45 (1) that the motion be made in writing and upon reasonable notice, the People have failed to preserve the issue for appellate review as there is no indication in the record that the People made a timely objection to the procedure employed (see, People v. Jennings, supra; cf., People v Johnson, 134 A.D.2d 284). Thompson, J.P., Brown, Balletta and Miller, JJ., concur.