(concurring in result). I believe that defendant has made a sufficiently satisfactory showing of the likelihood that the proof before the Grand Jury was insufficient to require this court to read the Grand Jury minutes. To demand any clearer showing would virtually require the defendant, from extrinsic sources and without access to the minutes, not only to present a reconstruction of the evidence before the Grand Jury, but to secure a certification of its faithfulness from the District Attorney. Except in a bizarre situation, such as was presented in People v. Nitzberg (289 N. Y. 523) this is manifestly impossible. The majority of the court, being* of the opinion that defendant has not made a showing* that would justify appellate review of the denial of his motion to dismiss the indictment on the ground of insufficiency of the evidence submitted to the Grand Jury, has held the court is not even required to read the Grand Jury minutes. It is my belief that not only should the court read the Grand Jury minutes, but that upon such reading it must proceed to determine whether or not the evidence was sufficient to sustain the indictment.
Upon a reading of the minutes, however, I believe that the proof submitted to the Grand Jury was sufficient to sustain the indictment.
Accordingly, I concur in the majority vote affirming the judgment of conviction.