People v. Kurtz

• Decision Date: 25 November 1980
• Citation: 414 N.E.2d 699,51 N.Y.2d 380,434 N.Y.S.2d 200
• Parties: , 414 N.E.2d 699 The PEOPLE of the State of New York, Respondent, v. James R. KURTZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 200

434 N.Y.S.2d 200

51 N.Y.2d 380, 414 N.E.2d 699

The PEOPLE of the State of New York, Respondent, v. James R. KURTZ, Appellant.

Court of Appeals of New York.

Nov. 25, 1980.

William J. McClusky, Adams, for appellant

Lee Clary, Dist. Atty. (Donald R. Gerace, Utila, of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

This appeal presents the issue whether constitutional or statutory double jeopardy provisions prohibit retrial after the trial court dismisses the accusatory instrument on the defendant's own motion for the reason that the prosecutor failed to make an adequate opening statement as required by CPL 260.30.

On March 2, 1979, the defendant was arrested and charged in a simplified traffic information with speeding and driving while intoxicated. (Vehicle and Traffic Law, §§ 1180, 1192.) On June 20, 1979, trial was held in City Court, City of Watertown. After the jury was selected and sworn, the prosecutor delivered his opening statement. Immediately thereafter, defense counsel moved to dismiss the information on the ground that the People's opening statement was inadequate as a matter of law. After arguments were heard in chambers, the trial court reserved decision on the motion. Over the objection of the prosecutor, who offered to amplify any inadequacies in his opening, the trial continued at the behest of defense counsel. After one witness had testified, the trial was recessed for the afternoon. The following day, the prosecutor moved for permission to supplement his opening statement to the jury. Defense counsel objected to this motion on procedural grounds. Shortly thereafter, the trial court denied the prosecutor's motion to supplement his opening and then dismissed the information on the ground that the prosecutor's opening statement to the jury was insufficient as a matter of law.

On appeal, County Court, Jefferson County, 101 Misc.2d 964, 422 N.Y.S.2d 352, reversed and remanded the case to City Court for a new trial. While County Court agreed with the trial court that the prosecutor's opening statement was inadequate in that it failed to state any of the facts constituting the offenses which the prosecutor intended to prove, County Court disapproved of the procedure utilized by the trial court subsequent to the defendant's motion to dismiss. The court stated that the trial court should have determined the motion before allowing the trial to continue and, upon deciding the prosecutor's opening statement was inadequate, it should have permitted the prosecutor to supplement his opening to the jury. Finally, County Court rejected defendant's contention that a reversal and new trial was barred by the doctrine of double jeopardy. The court held that retrial was not precluded as "it was the defendant's motion that concluded the trial proceedings prior to an evidentiary determination on the merits." There should be an affirmance.

At the outset, we note our agreement with the determination reached by the courts below that the prosecutor's opening statement was inadequate. CPL 260.30, which sets forth the order of events in a criminal jury trial, provides that the "people must deliver an opening address to the jury." (CPL 260.30, Subd. 3 (emphasis supplied).) This opening statement should be a capsulized version "of the evidence that (the prosecutor) expects to present, and the claim that he will make with reference thereto, to the end that the jury, upon listening to the evidence, may better understand and appreciate its connection and bearing upon the case." (People v. Benham, 160 N.Y. 402, 434, 55 N.E. 11; see, also, People v. Wade, 35 A.D.2d 401, 403, 317 N.Y.S.2d 122; People v. Oakley, 10 A.D.2d 457, 459, 200 N.Y.S.2d 961, revd. on other grounds 9 N.Y.2d 656, 212 N.Y.S.2d 72, 173 N.E.2d 48; see, generally, 3 Wharton's Criminal Procedure, § 493; 23A C.J.S. Criminal Law § 1085.) Moreover, we have held that the prosecutor's opening statement can neither be waived (People v. Levine, 297 N.Y. 144, 147, 77 N.E.2d 129; People v. McLaughlin, 291 N.Y. 480, 483, 53 N.E.2d 356; but cf. People v. Rivara, 33 A.D.2d 567, 305 N.Y.S.2d 332), nor does the reading of a short indictment constitute an adequate opening to the jury (People v. Levine, supra, 297 N.Y. at pp. 146-147, 77 N.E.2d 129).

Although the Criminal Procedure Law does not specify the requisite contents of the prosecutor's opening statement, at a minimum the prosecutor generally should set forth the nature of the charge against the accused and state briefly the facts he expects to prove, along with the evidence he plans to introduce in support of the same. (See People v. Benham, 160 N.Y. 402, 434, 55 N.E. 11, supra; People v. Wade, 35 A.D.2d 401, 403, 317 N.Y.S.2d 122, supra.) In this case, the opening statement merely consisted of a brief summary of the evidence to be introduced and a listing of the names of the witnesses who were to testify. The prosecutor failed in all respects to delineate the particular offenses with which the defendant was charged and how these charges were to be proven. Such an incomplete recitation simply fails to satisfy the statutory requirement that the prosecutor make an opening statement to the jury. (CPL 260.30, subd. 3.) That is not to say that the prosecutor must reveal all the evidence he intends to offer during the trial, but certainly the jury should hear sufficient evidence to intelligently understand the nature of the case they have been chosen to decide.

We also are in agreement with County Court's conclusion that the trial court erred in allowing the trial to proceed without first disposing of the defendant's motion to dismiss. The trial court should have ruled on the motion and given the prosecutor the opportunity to correct the deficiency before proceeding with trial. In failing to do so, the trial court abused its discretion.

Although heretofore we have not passed directly upon the propriety of a dismissal following an incomplete opening by the prosecutor, we have stated that "absent bad faith or undue prejudice, a trial will not be undone" simply because there was some defect in the prosecutor's opening to the jury. (People v. De Tore, 34 N.Y.2d 199, 207, 356 N.Y.S.2d 598, 313 N.E.2d 61, cert. den. 419 U.S. 1025, 95 S.Ct. 503, 42 L.Ed.2d 300.) Moreover, although a trial court can no doubt direct acquittal based on the prosecutor's opening statement, this should be done only upon an affirmative showing that the prosecutor is not entitled to a conviction because the charge cannot be sustained under any view of the evidence and then only after the prosecutor has been given an opportunity to correct the deficiency in his opening. (See People v. Coppa, 57 A.D.2d 189, 192, 394 N.Y.S.2d 219, revd. on other grounds 45 N.Y.2d 244, 408 N.Y.S.2d 365, 380 N.E.2d 195; People v. Handford, 40 A.D.2d 529, 333 N.Y.S.2d 950.) Indeed, the overwhelming majority of courts faced with such motions to dismiss have adopted the view that they should be denied unless it clearly appears from the opening statement that the defendant cannot be lawfully convicted and then only after the prosecutor has been made aware of the difficulty and fails or is otherwise unable to correct it. (See, e. g., Hanley v. United States, 5 Cir., 416 F.2d 1160, cert. den. 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91; United States v. Dietrich, 10 Cir., 126 F. 676; Chatman v. State, 164 Ind.App. 97, 326 N.E.2d 839; State v. Gray, 423 S.W.2d 776 (Mo.); see, generally, Power of Trial Court to Dismiss Prosecution or Direct Acquittal on Basis of Prosecutor's Opening Statement, Ann., 75 A.L.R.3d 649.)

In this case, the prosecutor's opening statement, although incomplete, did not contain any information that would indicate that the charges against the defendant could not be sustained, such as facts constituting a complete defense. (United States v. Dietrich, 10 Cir., 126 F. 676, supra.) Rather, the only deficiency in the opening statement was that it did not adequately amplify the charges against defendant and the facts to be proven in support thereof. Moreover, before dismissing the information, the Trial Judge not only failed to inform the prosecutor of the nature of the defect in his opening, but denied him the opportunity to correct this deficiency before permitting the trial to go forward. As County Court concluded, such action was an abuse of discretion, contrary to law.

The better practice concerning such motions directed at the adequacy of the prosecutor's opening statement would be that a motion should be made immediately after the prosecutor has completed his opening to the jury. The trial court should then inform the prosecutor of the nature of the defect, if any, and afford him an opportunity to rectify it. If the prosecutor is unable to do so, then the motion to dismiss the accusatory instrument must be granted. Under no circumstances should the court allow the trial to proceed without first ruling on the motion. As mentioned earlier, it was the belated disposition of the motion which has created the difficulty in this case, a problem which should be avoided in all other cases. However, our analysis does not end here for now we must determine whether defendant's retrial is prohibited by the doctrine of double jeopardy.

In this State, a defendant's right not to be twice put in jeopardy for the same crime is protected by the double jeopardy clauses of the Federal and State Constitutions as well as by statutory double jeopardy provisions. (U.S.Const., 5th Amdt.; N.Y.Const., Art. I, § 6; CPL 40.20.) Specifically, as the doctrine of double jeopardy has developed in New York in relation to midtrial dismissals, "reprosecution is permitted whenever a dismissal has been granted on motion by defendant, so long as the dismissal does not constitute an adjudication on the facts going to guilt or innocence (even where) dismissal occurs after jeopardy has attached." (People v. Key, 45 N.Y.2d 111, 117, 408 N.Y.S.2d 16, 379 N.E.2d...