People v. Powell , 58 A.D.2d 964 ( 1977 )

Appeal from an order of the County Court of Delaware County, entered March 2, 1977, which granted defendant’s motion to dismiss the indictment and ordered resubmission of the charges to the April 1977 Grand Jury. The defendant was indicted for assault in the first degree in violation of section 120.10 of the Penal Law. Subdivision 1 of the section reads as follows: "With intent to cause serious physical injury * * * causes such injury * * * by means of * * * dangerous instrument”. Serious physical injury means injury which creates a substantial risk of death, disfigurement, or causes protracted impairment of health (see Penal Law, § 10.00, subd 10). The testimony before the Grand Jury consisted of a physician’s note which indicated that the victim was admitted on December 4,1976 and discharged on December 9, 1976 and that surgery was performed which was described as follows, "Laporatomy [sic] for penetrating wound of abdomen”. The prognosis was indicated as excellent. The victim testified that he was stabbed with a knife, that he felt severe pain and spent six days in the hospital. The test to be applied on a motion to dismiss an indictment on the ground of the insufficiency of the evidence before the Grand Jury is the same as upon a motion at the end of the People’s case upon trial (CPL 190.65; People v Peetz, 7 NY2d 147). The evidence before the Grand Jury did not meet the requirements of law, wherefore, the court properly granted the defendant’s motion. Order modified, on the law and the facts, so as to provide that the District Attorney may resubmit the charges against the defendant within 30 days after service of a copy of the order to be entered hereon, and, as so modified, affirmed. Greenblott, J. P., Kane, Main, Mikoll and Herlihy, JJ., concur.