People v. Coppa

• Decision Date: 02 May 1977
• Citation: 394 N.Y.S.2d 219,57 A.D.2d 189
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., Appellant, v. Frank COPPA, Respondent.

Page 219

394 N.Y.S.2d 219

57 A.D.2d 189

The PEOPLE, etc., Appellant, v. Frank COPPA, Respondent.

Supreme Court, Appellate Division, Second Department.

May 2, 1977.

Eugene Gold, Dist. Atty., Brooklyn (Peter A. Norling, Brooklyn, of counsel), for appellant.

Paul A. Lemole, Staten Island, for respondent.

Before RABIN, Acting P. J., and SHAPIRO, TITONE and O'CONNOR, JJ.

SHAPIRO, Justice.

The People appeal from an order of the Supreme Court, Kings County, dated August 17, 1976, granting the defendant-respondent's motion to dismiss the indictment because of the prosecutor's alleged failure, in his opening statement to the jury, to state a prima facie case. We dismiss the appeal.

The defendant was charged in the indictment with two counts of grand larceny in the second degree. Upon the trial the prosecutor's opening consisted of a reading of the indictment and a short statement of what he intended to prove. When he had concluded his opening, the defendant moved to dismiss the indictment on the ground that the opening had not made out a case of grand larceny.

In answer, the court said that it found deficiencies in the opening and indicated that it was inclined to grant the defendant's motion. The prosecutor then moved to be permitted to add to his opening statement. The motion was denied. Thereupon this colloquy ensued between the court and the defendant and his counsel:

"THE COURT: Gentlemen, after what I considered to be long and harried discussions on the issue here as to the right of the defendant to have this indictment dismissed, based upon the failure of the opening statement to recite a prima facie case, and after much soul searching as far as the Court is concerned, I am convinced that the motion should be granted.

"I find that the opening statement is completely devoid of reciting any criminal act, or promised the proof of any criminal act to the jury on the part of this defendant. I feel that would impose, together with all the other problems which preceeded (sic ) the rendering of the opening statement with respect to the theory upon which the case would proceed to prove the larceny in this case.

"Taking the totality of the circumstances, I am granting the motion.

"However, I want it clearly understood that it is the intention of this Court that the motion should be taken as being granted and that this Order dismissing this indictment is being rendered under all and any appropriate sections of the law which permits me to render such a decision and attempts to preserve the District Attorney's right to appeal from this Order.

"Also, I take it that it has been made known in an in-camera conference, which was not on the record, but I now put this portion of the in-camera proceeding on the record, that I clearly also do not wish to avail to the defendant the right or any claim to double jeopardy should this indictment be returned in its present form for trial.

"Should an appellate court decide that I have made error in granting this motion, and I understand Mr. Lemole that you have agreed in chambers that you and the defendant, I assume you were speaking for the defendant, would stipulate that you will not avail yourself of the defense of double jeopardy should this case

"MR. LEMOLE (defense counsel): That's correct and so stipulated by counsel and defendant.

"THE COURT: Would the defendant say so?

"THE DEFENDANT: Yes."

The order signed by the Trial Judge reads:

"Upon motion of the defendant to dismiss the within indictment for the failure of the People in their opening address to the jury to state a prima facie case and pursuant to C.P.L. secs. 210.20(1)(h), and (i), it is hereby

"ORDERED that the motion be granted and the within indictment be dismissed."

Since the right of the People to appeal is purely statutory (CPL 450.20; People v. Zerillo, 200 N.Y. 443, 93 N.E. 1108), unless we can find statutory authority for this appeal we must dismiss it, regardless of the fact that the result does violence to our concepts of fairness.

In arguing against the defendant's motion to dismiss the indictment, the Assistant District Attorney said:

"I would like to bring to the Court's attention that it is the People's position that an appeal from such an order would not lie, that such an order is not cognizable under the C.P.L. There is no provision for the appeal from such an order, and, therefore, since there's no relief for the People and since, on the other hand, if your Honor's ruling is adverse to the defendant, he does have the right to appeal, we submit that if there is any question as to the merits, you should rule in favor of the People."

The Assistant District Attorney was correct on both grounds for (1) the order is not appealable and (2) the question of doubt as to the law should have been resolved in favor of the People (see People v. Reed, 276 N.Y. 5, 11 N.E.2d 330).

The provisions of paragraphs (h) and (i) of subdivision 1 of CPL 210.20, which the court cited in its order as the basis for the dismissal of the indictment, are completely inapplicable to the factual situation with which it was presented.

Paragraph (h) authorizes a dismissal only when "(t)here exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged" (that is, other than the specific grounds listed in the preceding paragraphs of subdivision 1, none of which are applicable here). That such "jurisdictional or legal impediment" must be substantial is made clear by the fact that, under subdivision 4 of CPL 210.20, a dismissal under that paragraph bars a resubmission of the charge to the Grand Jury. Clearly, the Legislature did not intend to provide such a final and drastic consequence, "the supreme sanction" (People v. Pinion, App.Div., 392 N.Y.S.2d 53 (2d Dept., dec. Feb. 28, 1977)), upon the failure of the prosecutor to make an adequate opening statement to the jury. At most, it was intended that such an omission should be remedied by allowing the prosecutor to correct the omission. In this case, as we have noted, the prosecutor specifically asked that he be permitted to amplify his opening statement. ^*

Paragraph (i) of subdivision 1 of CPL 210.20, cited by the trial court as an alternative ground for its action, provides for the dismissal of an indictment after arraignment where it "is required in the interest of justice, pursuant to section 210.40." Subdivision 1 of the latter section is a catch-all provision which authorizes the dismissal of an indictment "when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (h) of said subdivision one of section 210.20, such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment * * * would constitute or result in injustice" (emphasis supplied). It is clear that the alleged defect in the prosecutor's opening to the jury fails to meet that test. That section only applies when "there may be no basis for dismissal as a matter of law", i. e., when the defendant, despite his apparent guilt, shows that for some reason of compassion he should not be prosecuted. Conversely the dismissal here was not based upon the exercise of "judicial discretion", but upon the ground that the failure of the People to make an adequate opening warranted the dismissal as a matter of law (cf. People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106).

It is unfortunate that, by reason of the precipitous action of the trial court, the People will not have an opportunity to have the indictment tried on its merits, since there is no jurisdiction in this court to entertain the appeal and a resubmission of the matter to the Grand Jury is precluded by subdivision 4 of CPL 210.20. The result necessitated here should act as a warning to trial judges in criminal cases that the rule enunciated in People v. Reed, 276 N.Y. 5, 11 N.E.2d 330, supra is still the law and should be followed. In that case the court said (pp. 9-10, 11 N.E.2d pp. 332-333):

"While the defendant under our criminal procedure is entitled to the benefit of every reasonable doubt on the facts, the People should be entitled to any reasonable doubt a trial judge may have upon the law for, if he makes a mistake on the law, the People have no opportunity or method of reviewing his ruling, as strange as it may seem to us in this enlightened day. The defendant, for a wrong ruling, may always appeal the case for review to a higher court; the People have no such privilege, except as hereinafter stated. The trial justices in criminal cases, therefore, should bear this in mind when ruling upon points of law.

"The court apparently overlooked the powers of appellate courts under our system of law both the Appellate Division and the Court of Appeals to clarify any doubts about the law that may exist in the minds of trial judges. The appellate courts, unfortunately, by the granting of these motions, are barred from review by our anomalous procedure * * * Even though the judge was in error in these conclusions what can the appellate courts do about it? Apparently nothing, for reasons which we shall explain."

The appeal should be dismissed for want of jurisdiction to entertain it.

RABIN, Acting P. J., and TITONE, J., concur.

O'CONNOR, Justice (dissenting).

The instant appeal is reviewable by this court pursuant to subdivision 1 of CPL 450.20, which authorizes appeals from orders of dismissal entered pursuant to CPL 210.20. When Criminal Term dismissed the indictment in question, it acted within the scope of paragraph (h) of subdivision 1 of CPL 210.20. This court is, therefore, empowered to pass upon the merits of Criminal Term's action.

The respondent was indicted for the crime of grand larceny in the second degree (two counts). After the prosecution delivered its opening address, which...