I dissent and would vote to reverse the order which, based upon an inspection of the Grand Jury minutes, dismissed the indictment which had charged the defendant with manslaughter in the second degree.
Criminal Term, in its decision and order, correctly noted that "dismissal of the indictment may only be granted if the evidence is not legally sufficient to establish the count charged * * * or any lesser included offense. (CPL 210.20 subd. 1, par b).” It also noted that in making such a determination the evidence presented to the Grand Jury is to be viewed in the light most favorable to the People. (People v Warner-Lambert Co., 51 NY2d 295, 299.) In two significant respects, Criminal Term did not adhere to these mandates.
The indictment arises from the attempt on October 29, 1984, to evict Eleanor Bumpurs, an obese, arthritic 67-year-old woman from her apartment in a New York City public housing project for nonpayment of rent. Prior to the date of the eviction, Housing Authority officials had communicated with two daughters of Mrs. Bumpurs to ask their assistance in dealing with their mother’s situation. One of those officials also asked the aid of the New York City Department of Social Services. A psychiatrist visited Mrs. Bumpurs in her apartment four days prior to the eviction. The psychiatrist the next day reported that Mrs. Bumpurs was in need of hospitalization. He also noted that during most of the visit she was holding a long knife. Housing officials had, on previous visits to Mrs. Bumpurs in her apartment, noted that she held a knife in her hand. Neither the psychiatrist, nor any of the Housing officials had been threatened or assaulted during any of their visits.
The efforts of the project managers to gain immediate aid for Mrs. Bumpurs from her family or the Department of Social Services were unavailing. On October 29, the eviction was to proceed. A city Marshal, Housing police officers, Department of Social Services workers, Emergency Medical Service technicians, and others went to the apartment. One of the Housing police officers told the others that Mrs. Bumpurs had a history of throwing lye. The genesis of that rumor is unclear. It did, however, travel among those there assembled. There is nothing in the record to indicate that she had, at any time, ever thrown any lye.
When Mrs. Bumpurs refused to open the door, the Housing *119police present called for assistance from the New York City Police Department’s Emergency Service Unit (ESU). Before entry into the apartment was made, at least six ESU officers were present in addition to the other persons previously on the scene. They were equipped with, in addition to their usual side arms, a pump-action shotgun fully loaded with five rounds of double 0 buckshot (each shell containing nine pellets, each the size of a .32 caliber bullet), an "EDP bar” (a seven-foot-long iron bar with a U-shaped piece at its end, used to pin an emotionally disturbed person to a wall or floor), plastic shields, gas masks, and bullet proof vests.
Upon the failure of their entreaties to Mrs. Bumpurs to admit them, the police entered the apartment, after removing the locks and saw her seated on a stool at the far end of the living room. She arose from her seat and came towards them. One of the officers placed the EDP bar in her midsection, while she started swinging the knife which she still held. Another officer tried unsuccessfully to knock the knife from her hand with his plastic shield. The officer with the EDP bar tried to change his grip on it and Mrs. Bumpurs pushed it down. Several further attempts to pin her to the wall with the bar failed. The officer using the bar lost his balance and started to fall forward, whereupon Mrs. Bumpurs started to come out from behind the U-shaped front of the bar, still swinging the knife. Since their entry into the apartment the police officers had been shouting to her to drop her knife.
At this point, the defendant, the ESU Police Officer carrying the shotgun called "drop the knife” several times. When Mrs. Bumpurs did not comply, he fired two shots from the shotgun, pumping the gun to chamber another round between shots, each of which hit the decedent. After the second shot, she fell to the floor in the kitchen. One of the other officers present picked up the knife and some shattered pieces of the handle from the floor of the living room.
The testimony concerning the lapse of time between the two shotgun blasts is critical. The Grand Jury minutes reveal conflicting testimony on this issue. In its decision and order Criminal Term stated that the shots were separated by 1 to 3 seconds. There was testimony, however, that the shots were separated by 3 to 5 seconds. Obviously, the 3- to 5-second interval was that most favorable to the People and that which the court should have adopted, for purposes of this motion.
The defendant testified under a waiver of immunity. He *120stated that after firing the first shot at Mrs. Bumpurs from a distance of about two feet, he pumped another shell into the shotgun chamber, since it appeared to him that the first shot had "no effect whatsoever”. He further testified that when Mrs. Bumpurs continued "slashing and slashing” with the knife he fired the second shot at her chest. Of the other five police officers who were present in the room at the time of the incident, only one testified to having seen the knife in Mrs. Bumpurs’ hand after the first shot was fired.
Testimony was also heard from Sergeant Resua, the supervisor of the Criminalistics Unit of the New York City Police Laboratory. Sergeant Resua testified concerning his qualifications including Bachelor’s and Master’s degrees in forensic chemistry, authoring publications in criminalistic science* and teaching criminalistics at a university. He testified that he had done an analysis of a "partial knife blade and partial knife handle plus three pieces of wood” to determine the presence of lead or lead residue on any of them. He found a piece of lead imbedded in one of the three pieces of wood which he identified as having been part of the handle of the knife. He further testified that an analysis of the splintering and separation of the wood fragments indicated a condition consistent with a projectile hitting a piece of wood.
A detective who gathered some wood handle fragments in the apartment after the incident testified that he found wood chips under the sofa and imbedded in a sofa pillow.
Of great significance was the testimony of two medical experts. The first, Doctor Harold Osborne, is the director of the Emergency Medical Residency Training Program at Lincoln Hospital and in charge of that hospital’s emergency room surgical section. He is board certified both in the field of internal medicine and in the field of emergency medicine, has written many articles, and coauthored two texts on emergency medicine. He testified as to his efforts to resuscitate Mrs. Bumpurs after she arrived at the hospital, not breathing and showing no signs of life.
He testified that Mrs. Bumpurs had been hit by two separate shotgun blasts, one to the hand and one to the chest, and explained to the Grand Jury the reasons for that finding. He described the injury to the right hand, including the fact that *121the thumb and index finger had been blown off, with major damage to the rest of the hand. The fourth and fifth fingers were crumpled over, hanging by pieces of skin, and not fully attached to the hand. Dr. Osborne summarized his findings concerning Mrs. Bumpurs’ right hand by describing it as "essentially a bloody stump of an arm at that point”. He stated that it would have been anatomically impossible for Mrs. Bumpurs to have held anything in her right hand after it was struck with the shotgun blast.
Another medical expert who testified before the Grand Jury was Dr. John Pearl, Associate Medical Examiner of the City of New York. Dr. Pearl related his experience, which included 11 years as a medical examiner in the City of New York during which time he had personally performed 5,100 autopsies. Dr. Pearl testified as to the damage to Mrs. Bumpurs’ hand. He found three separate holes in the hand, one of which still contained a shotgun pellet. After further description of the condition of the hand, Dr. Pearl testified that "after the hand received this wound, she would not have been capable of holding anything”. He also testified in some more detail concerning the autopsy and the cause of death.
At no point in the court’s 14-page decision is there any reference, whatsoever, to the testimony of the two medical experts to the effect that it would have been impossible for Mrs. Bumpurs to continue to hold the knife after her hand had been struck by the shotgun blast.
It is apparent that the Grand Jury accepted the testimony of the expert witnesses to the effect that it would have been impossible for Mrs. Bumpurs to have continued to hold the knife after her hand had essentially been shot away. It is apparent, also, that the jurors thereby rejected the testimony of the defendant and the other officer that Mrs. Bumpurs continued to hold the knife in her hand after the first shot had been fired. The Grand Jury remains the exclusive judge of the facts with respect to any matter before it. (CPL 190.25 [5]; People v Pelchat, 62 NY2d 97, 105.) In this case, Criminal Term substituted its own evaluation of the inferences to be drawn from the evidence for that of the Grand Jury, thereby usurping the Grand Jury’s function as finder of the facts. (People v Di Napoli, 66 NY2d 812, citing with approval the dissent of Sullivan, J., 108 AD2d 650, 656 [1st Dept 1985].)
In its decision dismissing the indictment Criminal Term stated: "The evidence before the Grand Jury revealed that the *122defendant’s acts were in conformity with the guidelines and procedures outlined in the New York City Police Department Emergency Service Unit Manual. There was no proof or evidence before the Grand Jury upon which they could determine that the defendant acted outside the scope of his authority or that his actions did not conform to the specific mandates of his job. Under these circumstances there was no legally sufficient evidence to find that the defendant’s conduct 'constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the same situation’.” Without determining whether the foregoing would have constituted a proper standard, the observation is not supported by the evidence before the Grand Jury.
That evidence, accepted as it obviously was by the Grand Jury, showed that Mrs. Bumpurs no longer held the knife when the second, fatal, shot which struck her in her chest was fired. The Emergency Service Unit Operational Policies and Tactics Manual contains rules for the use of firearms. It states in chapter III, at page 17, "[MJembers will fire only when it is necessary to protect themselves or others from serious bodily harm”. It cannot be said that the Grand Jury was unjustified in finding that Mrs. Bumpurs, no longer holding the knife after being struck with the first shot, posed no threat of serious bodily harm to anyone.
A review of the District Attorney’s instructions to the Grand Jury was also requested by the defendant’s motion. Criminal Term did not scrutinize the instructions since it found such scrutiny to be unnecessary, having found legal insufficiency in its review of the evidence. A review of the District Attorney’s instructions reveals that they were adequate and proper. The defense of justification was fully and firmly explained as was the use of physical force and deadly physical force by a police officer in attempting to effect an arrest (Penal Law §§ 35.05, 35.10, 35.15, 35.30).
Accordingly, the order granting defendant’s motion to dismiss the indictment should be reversed, the motion denied and the indictment reinstated.
Sandler, J. P., Ross and Kassal, JJ., concur; Rosenberger, J., dissents in a separate opinion.
Order, Supreme Court, Bronx County, entered on April 12, 1985, affirmed.
The application of physical science to the law. Scientific crime detection. The application of techniques from the physical sciences and psychology to the problems of criminal identification and apprehension.