People v. Rodriguez

• Decision Date: 03 November 1997
• Citation: 244 A.D.2d 364,664 N.Y.S.2d 311
• Parties: , 1997 N.Y. Slip Op. 9253 The PEOPLE, etc., Appellant, v. Alberto RODRIGUEZ, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 311

664 N.Y.S.2d 311

244 A.D.2d 364, 1997 N.Y. Slip Op. 9253

The PEOPLE, etc., Appellant, v. Alberto RODRIGUEZ, Respondent.

Supreme Court, Appellate Division,

Second Department.

Nov. 3, 1997.

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Jeanette Lifschitz, and Johnnette Traill, of counsel), for appellant.

Daniel L. Greenberg, New York City (Svetlana M. Kornfeind, of counsel), for respondent.

Before BRACKEN, J.P., and JOY, ALTMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Queens County (Rutledge, J.), rendered October 28, 1996, which granted the defendant's oral application to reinspect the Grand Jury minutes underlying Queens County Indictment No. 5501/95, and reduced the charge of burglary in the third degree to attempted burglary in the third degree.

ORDERED that the order is reversed, on the law, the oral application is denied, the count of burglary in the third degree is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

The Supreme Court's reinspection of the Grand Jury minutes in the absence of a written motion is reversible error (see, People v. Johnson, 134 A.D.2d 284, 520 N.Y.S.2d 455). Moreover, the prior determination of another Justice denying the defendant's motion to dismiss the indictment constituted the law of the case and was binding upon any Justice of coordinate jurisdiction (see, People v. Johnson, 131 A.D.2d 696, 517 N.Y.S.2d 31).

Although this court is not bound by the prior determination as law of the case (People v. Finley, 104 A.D.2d 450, 479 N.Y.S.2d 63, adhered to on rearg., 107 A.D.2d 709, 484 N.Y.S.2d 63), we agree that the count of burglary in the third degree should not have been reduced to attempted burglary in the third degree. The reviewing Justice erroneously applied a higher standard to determine whether the People's circumstantial evidence was sufficient (see, People v. Jennings, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d 1079). In addition, the court did not have the power to reduce the charge in the interest of justice (see, Matter of McDonald v. Sobel, 272 App.Div. 455, 72 N.Y.S.2d 4, affd. 297 N.Y. 679, 77 N.E.2d 3).

As the defendant correctly concedes, the withholding of the People's consent rendered the trial court without authority to accept a plea to anything less than the entire indictment (see, People v. Esajerre, 35 N.Y.2d 463, 363...