(dissenting). The provocative question here presented is whether a defendant is without any practical remedy in the situation where he is indicted upon clearly insufficient evidence, is denied an inspection of the minutes of the Grand Jury that returned the indictment and is thereafter convicted upon the strength of evidence obtained by the People subsequent to the indictment.
*163Indicted for the crime of murder in the first degree, defendant Howell was charged with having been an accomplice of, and having acted in concert with, one Eyan in the premeditated and deliberate murder of a certain Lewis, a labor union official, outside the door of the latter’s apartment in The Bronx. Eyan himself had been shot and killed on the street by a policeman while attempting to flee from the scene of the crime.
The principal evidence against Howell at the trial consisted of admissions allegedly made by him during his detention in prison following the finding of the indictment to a fellow prisoner named Sanders, a thrice-convicted criminal. Apart from Sanders’ testimony—which was obviously not available to the Grand Jury—the People’s case against Howell was predicated exclusively on certain circumstantial evidence which, defendant has contended, was legally insufficient of itself to warrant conviction.
In advance of trial defendant made a motion, which was denied, for an inspection of the Grand Jury minutes and for a dismissal of the indictment on the basis of the insufficiency of the evidence before the Grand Jury. That motion was thereafter renewed at the trial upon the additional stated ground that the Grand Jury could not possibly have had Sanders’ testimony before it and that, absent his testimony, the only other evidence on which the indictment could have been predicated was clearly insufficient to warrant either indictment or conviction. The motion was again denied, and the trial resulted in a judgment convicting defendant of the crime of murder in the second degree. Appealing from the judgment of conviction, defendant also seeks to bring up for review the denial of his motions for inspection and dismissal.
The right of the defendant to secure review — in conjunction with an appeal from the judgment of conviction — of an order denying his motion to dismiss the indictment on the ground that it was based on insufficient evidence, is firmly established by the decisions. (People v. Glen, 173 N. Y. 395; People ex rel. Hummel v. Trial Term, 184 N. Y. 30; People v. Sexton, 187 N. Y. 495; People v. Nitzberg, 289 N. Y. 523.)
It is urged, however, that an order denying a motion made in advance of trial for an inspection of the Grand Jury minutes is not similarly reviewable. While no separate appeal lies from such an order (Matter of Montgomery, 126 App. Div. 72, appeal dismissed 193 N. Y. 659; People v. Strauss, 165 App. Div. 58), it is reviewable on an appeal from the judgment of conviction. *164(People v. Sweeney, 161 App. Div. 221, 229, affd. 213 N. Y. 37, 42; People v. Diamond, 72 App. Div. 281, 282, affd. 175 N. Y. 517; People v. Siegel, 282 App. Div. 747, 748; cf. People v. Zerillo, 140 App. Div. 902, appeal dismissed 200 N. Y. 443.) The considerations which have led the courts to uphold the reviewability, on appeal from the judgment of conviction, of an order denying a motion to dismiss the indictment as founded on insufficient evidence—even though the right of review is not expressly granted by the Code of Criminal Procedure (§§ 485, 517; see People v. Sexton, 187 N. Y. 495, 512, supra; People ex rel. Hummel v. Trial Term, 184 N. Y. 30, 33, supra) — are equally applicable to a review of a denial of a motion for inspection of the Grand Jury minutes in aid of such a motion to dismiss. In any event, since the motion here involved was renewed at the trial, the denial thereof became part of the minutes of the trial and was therefore clearly reviewable. (See People ex rel. Hummel v. Trial Term, supra, p. 33.)
The question remains whether the denial of a motion for inspection rests to such an extent in the discretion of the court below that an appellate court is foreclosed from interfering therewith. The Court of Appeals has held that because of the limitations on its jurisdiction it has no power to review a discretionary denial of a motion for inspection of the Grand Jury minutes. (People v. Sweeney, 213 N. Y. 37, 42, supra; Eighmy v. People, 79 N. Y. 546, 560.) This court’s jurisdiction is not, however, so limited (cf. Code Crim. Pro., § 527; People v. Boas, 92 N. Y. 560, 563-564), and this court, as well as the Appellate Divisions of other departments, has freely exercised the power to review the trial court’s exercise of discretion in denying a motion for inspection of Grand Jury minutes. (People v. Sweeney, 161 App. Div. 221, 229, supra; People v. Diamond, 72 App. Div. 281, 282, supra; People v. Siegel, 282 App. Div. 747, 748, supra.)
It is further urged, however, that defendant Howell failed to make a sufficient showing in the court below to justify either the granting of an inspection to the defendant or to warrant an inspection by the court itself, since, it is claimed, he did not clearly establish, by independent evidence, that the proof before the Grand Jury was insufficient. There is a presumption that ‘ ‘ an indictment is based upon legal and sufficient evidence until there is satisfactory proof to the contrary” (People v. Glen, 173 N. Y. 395, 403, supra), and a motion to dismiss an indictment on the basis of the insufficiency of the evidence before the Grand Jury will, of course, be granted only upon the clearest showing to that effect. (Cf. People v. Glen, supra; People v. *165Sexton, supra; People v. Sweeney, supra.) The same standard of proof, however, does not prevail on a motion for inspection of the Grand Jury minutes.
If the defendant had available to him independent conclusive proof establishing the insufficiency of the evidence before the Grand Jury, it would be entirely unnecessary for him to obtain an inspection of the Grand Jury minutes. The inspection is granted for the very reason that it is shown to be ‘ ‘ necessary to the defendant to enable him to make and sustain a motion to dismiss the indictment ”. (See Matter of Montgomery, 126 App. Div. 72, 83, supra.) Compare People v. Decina (2 N Y 2d 133, 145) where the Court of Appeals pointed out that it could not “ rule on the legal sufficiency of evidence before the Grand Jury without knowing what that evidence is ”, and that the defendant “ should have taken appropriate steps below and made a record so as to be in a position properly to raise the question on appeal.”
On the other hand, a motion for inspection is not granted as of course or as a matter of right, but is addressed to the sound discretion of the court. Some showing must be made by the defendant to justify the inspection, but it is sufficient if it be shown that “ there is reason to believe that the evidence before the grand jury is insufficient or illegal.” (See People ex rel. Lemon v. Supreme Court, 245 N. Y. 24, 31.) Moreover, the court would seem to have the power, in the exercise of its own prerogative, to examine the Grand Jury minutes itself in a proper case in order to enable it to pass upon a motion to dismiss the indictment. (Cf. United States v. Perlman, 247 F. 158,161.)
The showing made by the defendant at the trial that the principal evidence on which the People relied was not available to the Grand Jury, and that the only evidence on which the indictment could have been found consisted of circumstantial proof which was at least of doubtful sufficiency, was certainly adequate to justify the granting of an inspection, or at least an examination of the minutes by the court itself. Since the Grand Jury minutes have been made available to us on this appeal, we may certainly do what the trial court should have done, and determine the motion to dismiss on the basis of such minutes.
The fundamental rights here involved have been the subject of frequent judicial exposition. “ The grand jury is the great inquest between the government and the citizen. It is of the highest importance, that this institution be preserved in its purity, and that no citizen be tried, until he has been regularly accused by the proper tribunal.” (United States v. Coolidge, *166Fed. Cas. No. 14,858.) In this State, no person may be held or tried upon a charge of felony except on indictment of a Grand Jury (N. Y. Const., art. I, § 6), and an indictment must be based upon evidence which in the judgment of the Grand Jury “ would, if unexplained or uncontradicted, warrant a conviction by the trial jury.” (Code Crim. Pro., § 258.)
When ‘ ‘ it appears that an indictment is founded upon evidence which as matter of law is insufficient to warrant a conviction, the courts have power to set it aside.” (People v. Nitzberg, 289 N. Y. 523, 526, supra; People v. Sweeney, 213 N. Y. 37, 42, supra.) “ This power is based upon the inherent right and duty of the courts to protect the citizen in his constitutional prerogatives and to prevent oppression or persecution. It is a power which the legislature can neither curtail nor abolish, and, to the extent that legislative enactments are designed to effect either of these ends, they are unconstitutional.” (People v. Glen, 173 N. Y. 395, 400, supra.)
The courts have accordingly recognized the right of the defendant, independently of statutory authorization, to challenge the sufficiency of evidence before the Grand Jury by motion to dismiss the indictment prior to the entry of judgment of conviction. (People v. Glen, supra, p. 400; People v. Sexton, 187 N. Y. 495, 511-512, supra; People v. Nitzberg, supra, p. 529; People v. Eckert, 2 N Y 2d 126.) Upon such a challenge, the indictment must, of course, stand or fall without regard to any additional evidence that may be presented at the trial. (People v. Nitzberg, supra; People v. Sweeney, supra, p. 45; People v. Van Allen, 275 App. Div. 181.)
The guiding standards were just recently restated by the Court of Appeals in People v. Eckert (supra, p. 129): “ Of course, an indictment which is based upon circumstantial evidence which does not possess the degree of certitude which the law requires as to those facts bearing upon the accused’s guilt must be dismissed (People v. Lewis, 275 N. Y. 33). The legal sufficiency of such evidence is measured by two standards: the facts from which the inferences of the accused’s guilt are drawn must be satisfactorily established; and they must not only be inconsistent with innocence, but must exclude to a moral certainty every other reasonable hypothesis but guilt. (People v. Harris [136 N. Y. 423], supra; People v. Razezicz, 206 N. Y. 249; People v. Lewis, 275 N. Y. 33, supra; People v. Bearden, 290 N. Y. 478.) ”
The evidence underlying the indictment in the Eckert case was held to be legally sufficient, and it was accordingly observed *167that any issue as to credibility or weight of the evidence was a matter for the Grand Jury (People v. Eckert, supra, p. 129). The court, however, reaffirmed the basic principle that an indictment not founded on evidence sufficient as a matter of law to warrant a conviction must be dismissed.
A reading of the Grand Jury minutes in the instant case discloses that the evidence before that body against defendant Howell was for the most part circumstantial, insufficient as a matter of law, and therefore incapable of supporting the Grand Jury judgment of sufficiency that is implicit in voting the indictment. The substance of the evidence offered to connect Howell with the homicide was as follows: Howell was shown to have been in the vicinity of the deceased’s home on several different days preceding the shooting, being in Ryan’s company on one or more of such occasions. He was also seen in the neighborhood several hours before the shooting, and he was at the wheel of his wife’s automobile across the park from the deceased’s home, moving slowly in a northerly direction, at the time Ryan was being pursued by a police officer following the shooting. Ryan approached the car, put his hand on the front door and leaned forward, appearing to speak to Howell, and then turned and ran in the opposite direction. At that point, Ryan and the police officer exchanged pistol shots, and Howell sped away in the car. There was further evidence of abandonment of the car and flight by Howell, as well as of false statements made by him at the time of his surrender denying that he had been in The Bronx or in possession of his wife’s car on the day of the homicide. No further evidence was adduced to implicate Howell in the commission of the homicide.
Circumstantial evidence is, of course, “ not to be discredited simply because of its nature ”. (People v. Eckert, supra, p. 129.) But to serve as the predicate for indictment or conviction, it must be such as directly and satisfactorily establishes ‘ ‘ the facts from which the inferences are to be drawn ’ ’. Further, “ the inferences may not be based upon conjecture, supposition, suggestion, speculation or upon other inferences: the conclusion sought must flow naturally from the proven facts and be consistent with them all: the proven facts must exclude to a moral certainty every hypothesis except that of guilt or of the offense charged and not alone must all the proven facts be consistent with and point to guilt, but they must be inconsistent with innocence ”. (People v. Weiss, 290 N. Y. 160, 163; see, also, People v. Eckert, supra, p. 129; People v. Harris, 306 N. Y. 345, 351 ; People v. Bearden, 290 N. Y. 478; People v. Razezicz, 206 N. Y. *168249.) While 11 this does not mean that absolute or metaphysical certainty is required * * * The issue is: does the evidence logically point to the defendant’s guilt, and exclude, to a moral certainty, every other reasonable hypothesis (see People v. Harris, 306 N. Y. 345, 351).” (People v. Eckert, supra, p. 129.)
Under these criteria, the foregoing evidence was, to my mind, clearly insufficient as a matter of law to warrant Howell’s indictment or conviction for the crime of murder or for any degree of homicide that might properly be submitted to a jury. Totally lacking was any proof, as distinguished from suspicion or surmise, from which an inference might reasonably be drawn, to the exclusion of all other inferences, that Howell had acted in concert with Ryan in the commission of the homicide. We may assume that the evidence before the Grand Jury was adequate to warrant the inference that Howell was waiting for Ryan by prearrangement near the scene of the slaying, and perhaps even that he accompanied Ryan to the neighborhood. But such evidence of Howell’s presence at or near the scene of the crime or of his prior association with Ryan does not “ lead to any inference to the exclusion of all others ” that he was collaborating with Ryan in the perpetration of the killing. (Cf. People v. Weiss, supra, p. 170; People v. Ligouri, 284 N. Y. 309, 318; People v. Kress, 284 N. Y. 452, 460; People v. Cilento, 2 N Y 2d 55, 63.)
There was thus no proof, direct or circumstantial, that Howell knew or had reason to know that Ryan was armed or that he was going to shoot Lewis, or that he was acting in concert with Ryan to commit the crime of murder, or for that matter, any crime. The evidence before the Grand Jury manifestly did not exclude to a moral certainty the hypothesis of innocence, and at the most gave rise merely to suspicion which cannot, however, take the place of evidence.
The evidence of flight and of the false statements made by Howell likewise did not serve to ‘ ‘ ‘ exclude to a moral certainty every hypothesis except that of guilt ’ ” of the crime charged. (Cf. People v. Leyra, 1 N Y 2d 199, 210.) The Court of Appeals made the following observation in the Leyra case (supra, pp. 209-210): “ And our court has held that evidence of fabrication or other evasive conduct may 1 not serve as a substitute for other proof ’ (People v. Giordano, supra, 213 N. Y. 575, 583), that ‘ “ it operates ordinarily only by way of lending strength to other and more tangible evidence.” (People v. Nowakowski, 221 App. Div. 521, 523; and see Commonwealth v. Webster, 5 Cush. 295, 317) ’. (People v. May, supra, 290 N. Y. 369, 373.) ” *169Here, as in the Leyra case, there is no “ other and more tangible evidence ”, but only the evidence noted above, which would in no way warrant any inference of the defendant’s guilt.
Since the indictment was thus “ founded upon evidence which as matter of law is insufficient to warrant a conviction ” (People v. Nitzberg, 289 N. Y. 523, 526, sufra), the judgment of conviction should be reversed and the indictment dismissed.
Rabin and Frank, JJ., concur with Breitel, J. P.; Botein, J., concurs in the result in opinion; Valente, J., dissents and votes to reverse and dismiss the indictment in opinion.
Judgment affirmed.