Opinion
November 13, 1990
Appeal from the County Court, Dutchess County (Hillery, J.).
Ordered that the order is reversed insofar as appealed from, on the law, the indictment is reinstated, and the matter is remitted to the County Court, Dutchess County, for further proceedings.
The record reveals that, after the County Court reviewed the Grand Jury minutes and found the indictment to be based on legally sufficient evidence, it granted the defendant's motion to preclude the use of her inculpatory statement at trial due to the prosecution's failure to provide timely notice under CPL 710.30 of its intent to offer the statement into evidence at the trial. The court then, sua sponte, reassessed the evidence before the Grand Jury without considering the excluded statement and, finding the evidence to be legally insufficient, dismissed the indictment pursuant to CPL 210.20 (1) (b). This was error. The defendant's statement was prima facie competent and the indictment was supported by legally sufficient evidence presented to the Grand Jury. The court's subsequent exclusion of the statement for purposes of the trial does not render that evidence insufficient or otherwise invalidate the indictment (see, People v. Oakley, 28 N.Y.2d 309; People v. Kersch, 135 A.D.2d 570; People v. Blase, 112 A.D.2d 943; People v. Vega, 80 A.D.2d 867; People v. Mauceri, 74 A.D.2d 833). Moreover, the court failed to follow the proper procedure in dismissing the indictment sua sponte (see, People v. Sullivan, 142 A.D.2d 695; People v. Jack, 117 A.D.2d 753; People v. Vega, supra). Accordingly, the indictment must be reinstated.
We do not consider the defendant's alternative contention that dismissal of the indictment pursuant to CPL 210.20 (1) (h) is warranted since it was not advanced before the County Court. Sullivan, J.P., Rosenblatt, Miller and Ritter, JJ., concur.