People v. Nash ( 1997 )

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of murder in the second degree and promoting prison contraband in the first degree. Defendant, an inmate in the Auburn Correctional Facility, killed another inmate by hitting him on the head with a drain pipe, then cutting his throat with a saw that he had made by mounting several razor blades into a piece of wood. Defendant argues that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 210.35 (5), on the ground that the Grand Jury proceeding was impaired by the presence of a grand juror who worked at the Correctional Facility and knew defendant and the victim. Contrary to the People’s argument, that issue is reviewable on direct appeal. CPL 210.30 (6) applies only to motions to dismiss an indictment on the ground of insúfficiency of evidence; other errors in the Grand Jury proceedings are reviewable on appeal from a judgment based upon legally sufficient trial evidence {see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 210.30, at 642).