The People of the State of New York, Appellant, v. Roger J. Kestler, Respondent

The People of the State of New York, Appellant, v Roger J. Kestler, Respondent. [607 NYS2d 823] [MAJORITY] Order unanimously reversed on the law, motion denied, indictment reinstated and matter remitted to Wayne County Court for further proceedings on the indictment. Memorandum: County Court erred when it granted defendant’s motion to dismiss the indictment charging felony DWI based upon insufficient evidence before the Grand Jury. The court found that there was "no corpus delicti as to the Defendant’s admissions” that he was operating a motor vehicle on a public highway. On a motion to dismiss an indictment under CPL 210.20 (1) (b), the inquiry of the reviewing court is limited to the legal sufficiency of the evidence (see, People v Jennings, 69 NY2d 103, 115; People v Wynn, 177 AD2d 1016, 1017, lv denied 79 NY2d 954; People v Mercier, 172 AD2d 1050; People v Moore, 171 AD2d 1051, lv denied 77 NY2d 998). The sufficiency of the People’s presentation is properly determined by inquiring whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (see, People v Jennings, supra, at 114; People v Pelchat, 62 NY2d 97, 105; People v Wynn, supra, at 1017). Upon our review of the Grand Jury minutes, we conclude that there was competent evidence, other than defendant’s admission, that defendant was operating a vehicle on a public highway. The evidence established that a van was stuck in the mud on the ball field of the elementary school off Stone Road. Although the van was unoccupied at the time, the investigating officer searched the car and found a checkbook with defendant’s name on it. Defendant was then observed staggering down the road toward the van and he exhibited all of the classic signs of intoxication. Defendant admitted that it was his car that was stuck in the mud, that he had driven it there and that he had not consumed any alcohol between the time he drove the van onto the ball field and the time he returned to the vehicle. He also admitted that he did not have a valid driver’s license. That evidence satisfies the requirement that defendant’s admissions be supported by some additional proof that defendant had committed the offense of driving while intoxicated on the evening in question (see, CPL 60.50; People v Booden, 69 NY2d 185; People v Cook, 191 AD2d 993, lv denied 81 NY2d 1071). (Appeal from Order of Wayne County Court, Sirkin, J. — Dismiss Indictment.) Present — Callahan, J. P., Pine, Fallon, Doerr and Davis, JJ.