SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART 41 THE PEOPLE OF THE STATE OF NEW YORK, Indictment Number 2598/10 -against- . JOHN F. HAGGERTY, JR. and :Decision & Order SPECIAL ELECTIONS OPERATIONS, LLC, Defendant. ZWEIBEL, J.: Defendant’s omnibus motion is disposed of as follows: 1. The motion for inspection and/or dismissal of the Grand Jury minutes is granted to the extent that the Court has examined the Grand Jury minutes in camera and found the evidence before the Grand Jury to be legally sufficient, the instructions to be proper and the proceeding to be unimpaired. The Court notes that it has specifically considered the arguments of counsel while inspecting the minutes and has found them to be without merit. Indeed, the issues in the defendant’s motion are relatively straightforward, and disclosure of the Grand Jury minutes is not necessary to their resolution (see CPL S$ 210.30[3]). Accordingly, the motion to dismiss the indictment is denied. As to defendant Special Elections Operations, LLC (“SEO”), the motion for inspection and/or dismissal of the Grand Jury minutes is granted to the extent that the Court has examined the Grand Jury minutes in camera and found the evidence before the Grand Jury to be legally sufficient, the instructions to be proper and the proceeding to be unimpaired as to Counts Two through Five of the indictment. The Court notes that it has specifically considered the arguments of counsel while inspecting the minutes and has found them to be without merit. Indeed, the issues in the defendant's motion are relatively straightforward, and disclosure of the Grand Jury minutes is not necessary to their resolution (see CPL § 210.30[31). Accordingly, as to SEO, the motion to dismiss Counts Two through Five of the indictment is denied. However, the evidence of SEO’s involvement in the Grand Larceny in the First Degree as set forth in Count One is legally insufficient.“[A]n indictment is presumed to be based on legal and sufficient evidence” (People v. Bergerson, 17 N.¥.2d 398, 402 [1966]; see also People v. Howell, 3 N.¥.2d 672, 675 [1958]). The Grand Jury may not indict unless the People present evidence establishing a prima facie case of criminal conduct (see People v. Jennings, 69 N.¥.2d 103, 114-115 [1986]; People v. Dunleavy, 41 A.D.2d 717 [1"* Dept.], aff’d. 33 N.¥.2d 573 [1973]) - ” Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof” (CPL § 70.10(1); People v. Manini, 79 N.¥.2d 561, 568 [1992]). In determining the sufficiency of the evidence before the grand jury, including proof encompassing any requisite culpable mental state (People v. Mayo, 36 N.¥.2d 1002 [1975]; People v. Lott, 104 A.D.2d 710 [3* Dept.1984]; People v. Delameter, 96 A.D.2d 629 [3 Dept.1983]), the Court must view such evidence in a light most favorable to the prosecution, and determine whether such evidence, if unexplained and uncontradicted, would constitute prima facie proof so as to warrant a conviction after trial (see People v. Swamp, 84 N.¥.2d 725, 730 [1995]; People _v. Pelchat, 62 N.¥.2d 97, 105 [1984]; People v. Manini, 79 N.¥.2d, at 568; People v. Jennings, 69 N.¥.2d, at 114-115; People v. Valles, 62 N.Y.2d 36 [1986]). “In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt” (People v. Mayo, 36 N.¥.2d, at 1004). “In determining whether the People have reached this stage, all questions as to the quality or weight of the proof should be deferred. In other words if the prosecutor has established a prima facie case, the evidence is legally sufficient ‘even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements.’ To further illustrate the point the Commission Staff noted that evidence may be ‘legally sufficient’ to support a charge although it does not prove guilt ‘beyond a reasonable doubt,’ and for that matter, although it does not even provide ‘reasonable cause’ to believe that the defendant committed the crime charged. (See Commission Staff Comment to Proposed CPL 35.10, now CPL 70.10)” (People v. Sabella, 35 N.¥.2d 158, 167 [1974]). A person is guilty of Larceny in the First Degree (Penal Law 2§155.42) when he steals property and the value of the property exceeds one million dollars ($1,000,000). A person commits the crime of larceny when he “steals property,” that is, “when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05[1])- Defendants are alleged to have stolen in excess of $1,000,000 dollars from Mayor Bloomberg when defendant Haggerty submitted a proposed budget for ballot security in excess of $1 million dollars, stating that some expenditures had already been made toward implementation of that plan for Mayor Bloomberg’s 2009 campaign although he had not yet spent any funds towards its implementation at the time and when he apparently had no intention of implementing the proposed plan as represented to Mayor Bloomberg’s 2009 campaign and by implicitly misrepresenting the cost of providing ballot security and suggesting that it be done through a donation to the New York State Independence Party (*NYSIP”) “housekeeping” account, which in turn caused such donation to be made and of which defendants were entitled, pursuant to an October 15, 2009 contract between defendants and the NYSIP, to up to $1.1 million dollars for providing ballot security on election day that cost approximately $32,000. Upon SEO’s incorporation on December 3, 2009, over a month after the donation to the NYSIP was made, defendant Haggerty submitted an invoice for $750,000 to the NYSIP on behalf of SEO for services rendered, although the amount was substantially in excess of the amounts actually spent, and received a payment from the NYSIP of $750,000 pursuant to the October contract. Here there is no question that the evidence is legally sufficient as to defendant Haggerty. The problem arises as to his alter-ego, SEO. In this case, the People concede in their response to defendant’s motion, that “[a]t the time the funds were transferred to the NYSIP, the larceny was complete” (People’s October 28, 2010 Memorandum of Law, p. 28). The problem is that a “person” has to commit the crime and SEO was not a person at the time the crime was committed and completed. Penal Law § 10.00(7) defines “person” as “a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or agovernmental instrumentality” (emphasis added). The term “person” is generally used in the definition of offenses to xefer to both the person who is guilty of an offense and the victim of an offense. In addition to its ordinary meaning, human being, it includes, “where appropriate,” various legal entities (Penal Law § 10.00[7]). In this case, the People do not claim that SEO is a human being, an unincorporated association, a partnership or a government or a governmental instrumentality. Thus, SEO must be a public or private corporation at the time of the offense However, according to the People’s papers, the larceny was completed when the funds were transferred to NYSIP on October 30, 2009, more than a month before SEO was incorporated, and therefore, a “person” within the meaning of Penal Law § 10.00(7). The Court notes that the only mention of SEO before its December 2009 incorporation is the October 15, 2009 “consulting agreement” defendant Haggerty allegedly entered into with the NYSIP for the creation and design of a “poll watching/ballot security plan” for the "November 2009 General Election in New York.” This agreement identified Haggerty as the “sole member” of SEO, claimed to be located at 121 State Street in Albany, New York and provided that Haggerty, through SEO, would receive no more than $1.1 million dollars as a supposed fee. The agreement was signed by Haggerty and Thomas Connolly, who was identified as the Vice-Chairman of the NYSIP. Mayor Bloomberg and members of his campaign were unaware of this agreement or of the existence of SEO. According to the People, SEO’s stated address was a sham as SEO never had an office at that address, received no mail, and no one claiming to work for SEO ever performed any work there. Additionally, Haggerty did not open a bank account for SEO until December 9, 2009. No funds were expended from SEO to pay for the Operation on Election Day. However, since a nonexistent entity cannot acquire rights or assume liabilities, a corporation which has not yet been formed normally lacks capacity to enter into a contract (see Rubenstein v. Mayor, 41 A.D.3d 826, 828 [2d Dept. 2007]; 442 Decatur St., LLC v. Spheres Realty, Inc., 14 A.D.3d 535, 536 [2d Dept. 2005]; Farrell v. Housekeeper, 298 A.D.2d 488, 489 [2d Dept. 2002]; 1 83 Holding Corp. v. 183 Lorraine st. Assoc., 251 A.D.2d 386, 386-387 [2d Dept. 1998]). Here, it is