Opinion
October 28, 1991
Appeal from the County Court, Suffolk County (Tisch, J.).
Ordered that the order is affirmed.
Upon our review of the evidence presented to the Grand Jury, we find that the indictment, which charged two counts of attempted burglary in the first degree, was not supported by legally sufficient evidence. In the context of a Grand Jury proceeding, the sufficiency of the People's presentation is determined by inquiring into whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (see, People v. Jennings, 69 N.Y.2d 103, 114; People v. Pelchat, 62 N.Y.2d 97; People v. Flores, 122 A.D.2d 806). Although the evidence presented to the Grand Jury, when viewed in such a light, established that the defendant intended to unlawfully enter the complainant's residence, the evidence failed to establish that the defendant's intent to commit the crime of burglary came within "dangerous proximity" of fruition (see, People v Mahboubian, 74 N.Y.2d 174, 190; People v. Bracey, 41 N.Y.2d 296, 299). Accordingly, the dismissal of the indictment was proper. Bracken, J.P., Harwood, Eiber and Rosenblatt, JJ., concur.