Opinion
October 23, 1978
Appeal by the People from (1) an order of the Supreme Court, Suffolk County, dated March 30, 1978, which granted the defendant's motion, pursuant to CPL 210.30, to dismiss the indictment on the ground that the Grand Jury evidence was insufficient; and (2) a second order of the same court, dated April 27, 1978, which denied the People's motion to "vacate" the March 30, 1978 order and reinstate the indictment (in effect, a motion to reargue). Appeal from the order dated April 27, 1978 dismissed. No appeal lies from an order denying a motion to reargue. Order dated March 30, 1978 reversed, on the law, and indictment reinstated. We hold that Criminal Term erred in concluding that "There is no showing in the evidence presented that there was a firm limitation at $1,295 thereby categorizing excess payments as larcenous". Review of the Grand Jury testimony of Robert Schmidt indicates unequivocally that any "agreement" the defendant had for vacation compensation was limited solely to $1,295. Furthermore, Criminal Term's reliance on the unsworn letter of Ralph Hayden dated December 12, 1977, to the effect that the defendant was owed $6,174 as the cash equivalent of some 14 weeks' additional vacation, was erroneous. It is undisputed that Hayden was not speaking from personal knowledge. On the contrary, it was the defendant who provided Hayden with the information contained in the letter. Under these circumstances, the letter was totally self-serving and lacked all but the most minimal probative value. In any event, the letter was not before the Grand Jury which returned the indictment. Accordingly, the evidence presented to the Grand Jury will sustain a conviction if unexplained or uncontroverted (see People v Haney, 30 N.Y.2d 328, 335; People v Donahue, 309 N.Y. 6, 7; People v Dunleavy, 41 A.D.2d 717, affd 33 N.Y.2d 573). We note that dismissal of the indictment was based solely on the testimony before the Grand Jury and not in the interest of justice (see People v Clayton, 41 A.D.2d 204; People v Belge, 41 N.Y.2d 60, 62). Suozzi, J.P., Gulotta, Shapiro and Margett, JJ., concur.