People v. Harrell

282 A.D. 1051 | N.Y. App. Div. | 1953

Defendant appeals from a judgment of the County Court, Kings County, convicting him of the crimes of robbery in the first degree, grand larceny in the second degre and assault in the second degree. Defendant also appeals from the sentence and from an order of said court denying his motion for inspection of the Grand Jury minutes and for dismissal of the indictment on the ground that it was based on insufficient and incompetent evidence. Judgment reversed on the law and a new trial ordered. The proof was insufficient to meet the requirements of section 399 of the Code of Criminal Procedure. Although the accomplice testified that-two certain notes had been given to him by appellant, which notes could have been considered as tending to connect appellant with the commission of the crimes, there was no proof linking appellant with the notes independent of the testimony of the accomplice. Appeal from so much of the order as denied the motion for an inspection of the Grand Jury minutes dismissed. Such a motion is addressed to the discretion of the court and is not appealable. No separate appeal lies from the order' insofar as it denied the motion to dismiss the indictment nor from the sentence, which have been reviewed on the appeal from the judgment of conviction. The motion to dismiss the indictment was properly denied. An indictment is presumed to be based on sufficient legal evidence, unless proof to the contrary appears. Adel, Acting P. J., Wenzel, MacCrate, Schmidt and Beldock, JJ., concur.