
    The People of the State of New York, Appellant, v John Hennessy, Respondent.
    [654 NYS2d 77]
   —Order unanimously affirmed. Memorandum: The People appeal from an order of County Court granting defendant’s motion to dismiss an indictment charging scheme to defraud in the first degree, petit larceny and falsifying business records in the first degree on the ground that the evidence before the Grand Jury was legally insufficient.

We agree with the People that the court erred in evaluating the proof using the "moral certainty” standard that is applicable at trial. "The sufficiency of the People’s presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” (People v Jennings, 69 NY2d 103, 114). Viewing the evidence in the light most favorable to the People, however, we conclude that it is not sufficient to support an inference that the failure of defendant to make timely payment of health insurance premiums on behalf of his employees "was the result of a fraudulent scheme rather than a lack of ability to manage his business” (People v Rogers, 192 AD2d 1092, 1093; see also, People v Ferry, 142 AD2d 994, lv denied 73 NY2d 891). (Appeal from Order of Ontario County Court, Sirkin, J.—Dismiss Indictment.) Present—Pine, J. P., Lawton, Callahan, Doerr and Boehm, JJ.  