Opinion
February 10, 1999
Appeal from Order of Supreme Court, Onondaga County, Brunetti, J. — Dismiss Indictment.
Present — Denman, P. J., Green, Hayes, Pigott, Jr., and Balio, JJ.
Order insofar as appealed from reversed on the law, motion denied in part, count three of the indictment reinstated and matter remitted to Supreme Court for further proceedings on count three of the indictment. Memorandum: The People appeal from an order dismissing the indictment against defendant on the grounds that the evidence before the Grand Jury is legally insufficient to support the charges, and in the interest of justice.
We agree with the People that the evidence is legally sufficient to support count three of the indictment charging attempted grand larceny in the third degree (Penal Law § 110.00, 155.35 Penal), under the common-law theory of larceny by false pretenses. The evidence establishes that defendant made false representations to the bank that he was the owner of checks deposited in another person's account ( see, People v. Churchill, 47 N.Y.2d 151, 155-156). That evidence, when viewed in the light most favorable to the People ( see, People v. Jennings, 69 N.Y.2d 103, 114; People v. Smith, 213 A.D.2d 1073); is sufficient to support an inference that defendant intended to deprive the owner of his property ( see, Penal Law § 155.05).
We further agree with the People that Supreme Court abused its discretion in dismissing the indictment in the interest of justice. "On this record, it has not been demonstrated that there are sufficient `compelling' factors to warrant dismissal of the indictment (CPL 210.40; People v. Rickert, 58 N.Y.2d 122; People v. Clayton, 41 A.D.2d 204)" ( People v. Rucker, 144 A.D.2d 994, lv denied 73 N.Y.2d 926). "It is well settled that the discretionary power to dismiss an indictment in the interest of justice is to be exercised sparingly" ( People v. Bebee, 175 A.D.2d 250, lv denied 78 N.Y.2d 1126). Upon our review of the record, we conclude that "this case does not present one of those rare instances where dismissal in the interest of justice is warranted" ( People v. Bebee, supra, at 250). Consequently, we reverse the order insofar as appealed from, deny the motion in part, reinstate count three of the indictment and remit the matter to Supreme Court for further proceedings on that count.
All concur, Hayes, J., not participating.