Opinion
(1329) KA 01-00794.
November 9, 2001.
(Appeal from Order of Monroe County Court, Bellini, J. — Reduce Count Indictment.)
PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, GORSKI AND LAWTON, JJ.
Order unanimously reversed on the law, motion denied, indictment reinstated and matter remitted to Monroe County Court for further proceedings on indictment.
Memorandum:
We agree with the People that County Court erred in granting defendant's motion and reducing the one-count indictment from assault in the second degree (Penal Law § 120.05) to assault in the third degree (Penal Law § 120.00). Contrary to the court's determination, the Grand Jury had before it "evidence legally sufficient to establish a prima facie case, including all the elements of the crime, and reasonable cause to believe that the accused committed the offense to be charged" ( People v. Jensen, 86 N.Y.2d 248, 251-252). Based upon the expert medical testimony and the nature of the wound, we conclude that the evidence is legally sufficient to establish that the injury sustained by the victim was caused by a dangerous instrument ( see, People v. Wade, 274 A.D.2d 438, 439, lv denied 95 N.Y.2d 939; People v. Wilson, 240 A.D.2d 774, 775, lv denied 90 N.Y.2d 899; People v. Vincent, 231 A.D.2d 444, 445, lv denied 89 N.Y.2d 925, 931). We therefore reverse the order, deny defendant's motion, reinstate the indictment and remit the matter to Monroe County Court for further proceedings on the indictment.