
    The People of the State of New York, Respondent, v Martin Dwyer, Appellant.
    [653 NYS2d 49]
   —Judgment unanimously reversed on the law and indictment dismissed. Memorandum: Upon our review of the record, we conclude that the evidence is legally insufficient to establish that defendant knowingly and intentionally lied when he testified before the Grand Jury and thus the judgment convicting defendant of perjury in the third degree must be reversed (see, People v Rosano, 69 AD2d 643, affd 50 NY2d 1013). "A person is guilty of perjury in the third degree when he swears falsely” (Penal Law § 210.05). "A person 'swears falsely’ when he intentionally makes a false statement which he does not believe to be true (a) while giving testimony” (Penal Law § 210.00 [5]). Thus, more is required to sustain a conviction for perjury than mere falsity (see, People v Rosano, supra, at 659). Although materiality is not an element of perjury in the third degree, to establish perjury it is still necessary to prove that the false testimony was given willfully and knowingly (People v Samuels, 284 NY 410, 415). Thus, it must be proven-that defendant intentionally made a false statement and that defendant’s " 'conscious objective’ ” was to tell a falsehood (People v Rosano, supra, at 659). Defendant, an off-duty police officer, testified at trial that he did not intentionally lie when he testified before the Grand Jury that he discharged a Smith and Wesson gun instead of the unregistered Colt gun. He offered the plausible explanation that both guns were in the glove compartment of his car and that he believed that he had grabbed the Smith and Wesson rather than the Colt gun. The People did not offer any evidence, other than mere surmise, to establish that defendant intentionally lied about the identity of the gun that he used that morning. Indeed, the make and model of the gun were irrelevant to the other charges in the indictment. (Appeal from Judgment of Supreme Court, Erie County, Griffith, J.—Perjury, 3rd Degree.) Present—Green, J. P., Lawton, Callahan, Doerr and Boehm, JJ.  