
    The People of the State of New York, Appellant, v James Vallone, Respondent.
   The defendant did not make a clear showing that the evidence presented to the Grand Jury, when viewed in the light most favorable to the People, was not legally sufficient to establish that the driver of the blue truck in question was the shooter and that the defendant was the driver of the blue truck (see, People v Adorno, 112 AD2d 308). Contrary to the defendant’s contention, in a wholly circumstantial case the evidence before the Grand Jury need not exclude to a moral certainty every hypothesis consistent with innocence (People v Deegan, 69 NY2d 976; People v Jennings, 69 NY2d 103). Thus the court erred in dismissing the indictment under CPL 210.20 (1) (b).

The alternative ground raised by the defendant for affirming the order dismissing the indictment may not be considered on this appeal by the People (CPL 470.15 [1]; People v Goodfriend, 64 NY2d 695; People v Heizman, 127 AD2d 609, lv denied 69 NY2d 950). Thompson, J. P., Brown, Weinstein and Harwood, JJ., concur.  