People v. Yip

• Decision Date: 13 March 1986
• Parties: The PEOPLE of the State of New York, Appellant, v. Ngor YIP, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 752

499 N.Y.S.2d 752

118 A.D.2d 472

The PEOPLE of the State of New York, Appellant, v. Ngor YIP, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

March 13, 1986.

J.G. Martin, New York City, for appellant.

L. Fleischer, New York City, for defendant-respondent.

Before SANDLER, J.P., and CARRO, ASCH, KASSAL and ROSENBERGER, JJ.

MEMORANDUM BY THE COURT.

Order, Supreme Court, New York County (Robert M. Haft, J.), entered May 17, 1985, granting defendant's motion to dismiss an indictment, which had charged him with two counts of robbery in the first degree and one count of robbery in the second degree, unanimously reversed, on the law, the indictment reinstated and the matter remanded to the Supreme Court for further proceedings.

Defendant was indicted, following presentment to a Grand Jury, in connection with a gunpoint robbery of a health club at 350 Sixth Avenue, which took place on December 25, 1984, at about 4:00 a.m. Three Oriental men, armed and wearing masks and dark jackets, ordered patrons to lie face down. During the robbery, they were joined by other accomplices, who also wore masks and dark jackets. At about 5:30 a.m., while the crime was in progress, the police responded to the scene. The robbers ran to the rear of the club and jumped from a second story window after discarding two guns. Ms. Young, the proprietor of the club, heard one of the men scream in pain after he had jumped from the window and landed in the alley below and heard another accomplice tell him to "get up and move fast." She opened the front door and directed the police to the rear, where the men had fled into the alley. An unidentified woman, who was leaning out of one of the windows of the club, pointed down the street at five male Orientals, who were fleeing from the scene. There was no one else on the street at the time. The officers pursued the men, apprehending only defendant. His face was swollen, there was blood coming from his nose and he was limping, complaining of severe pain in the leg. He was wearing a black leather jacket but no mask was recovered. Two pistols were retrieved from the kitchen, which were identified by Ms. Young as having been used during the robbery.

After an in camera inspection of the Grand Jury's minutes, the indictment was dismissed as legally insufficient since there had been no identification of the defendant. In doing so, the court erred in overlooking the circumstantial evidence in the case, which, when viewed as a whole and according to the Grand Jury the right to draw reasonable inferences from the evidence, we find prima facie sufficient to sustain the indictment (see People v. DiNapoli, 66 N.Y.2d 812, 498 N.Y.S.2d 362, 489 N.E.2d 249, citing with approval the dissenting memorandum of Sullivan, J., 108 A.D.2d 650, 656, 487 N.Y.S.2d 526). The absence of eyewitness identification is not dispositive, especially in a case involving circumstantial evidence.

On a motion to dismiss an indictment, there must be "a clear showing that the evidence before the Grand Jury was insufficient." (People v. Howell, 3 N.Y.2d 672, 677, 171 N.Y.S.2d 801, 148 N.E.2d 867). On such a motion, the evidence must be examined in a light most favorable to the People in determining whether there is "competent evidence which, if accepted as true, would establish every element of an offense charged and the...