People v. Dockside 500 Marina, Inc.

• Decision Date: 04 December 1975
• Citation: 378 N.Y.S.2d 253,85 Misc.2d 337
• Parties: PEOPLE, Appellant, v. DOCKSIDE 500 MARINA, INC., et al., Respondents.
• Court: New York Supreme Court

Page 253

378 N.Y.S.2d 253

85 Misc.2d 337

PEOPLE, Appellant, v. DOCKSIDE 500 MARINA, INC., et al., Respondents.

Supreme Court, Appellate Term, Ninth and Tenth Judicial Districts.

Dec. 4, 1975.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz, Philip Weinberg and Richard G. Berger, New York City, of counsel), for appellant.

Wheller & Spellman, Farmingville (Henry J. Wheller, Farmingville, of counsel), for respondents.

Before HOGAN, P.J., and PITTONI and FARLEY, JJ.

MEMORANDUM

PER CURIAM.

Appeals from trial orders of dismissal dismissed.

The case at bar is purportedly before this court by statutory authority permitting the People a right of appeal (CPL 450.20(2), 290.10(1)). The People's right to appeal in a criminal prosecution is governed by statute, and in the absence of a specific statutory grant to appeal, the court is without jurisdiction (People v. Reed, 276 N.Y. 5, 11 N.E.2d 330; People v. Gersewitz, 294 N.Y. 163, 61 N.E.2d 427). The Supreme Court of the United States in United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 has held that the proper criterion for appealability is whether upon reversal and remand further proceedings 'devoted to the resolution of the factual issues going to the elements of the offense charged would have been required' (see, also, United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232; cf. People v. Sabella, 35 N.Y.2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569).

Since defendant has failed to raise the double jeopardy question on appeal (it was raised in United States v. Jenkins, supra), the issue before this court is whether it has waived this objection. Double jeopardy is a personal right which, if not timely interposed at trial, may be waived (People v. La Ruffa, 37 N.Y.2d 58, 371 N.Y.S.2d 434, 332 N.E.2d 312). In La Ruffa, supra, defendant had already waived his double jeopardy objection in his second trial. That situation is distinguishable from the case at bar where defendant has not yet been placed in jeopardy for the second time. In both Jenkins, supra, and People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d 518, the courts have permitted the double jeopardy question to be raised before defendant was placed in jeopardy. Furthermore, it appears that under similar circumstances, the Court of Appeals has considered this objection even though it was not raised (People v. Fellman, 35 N.Y.2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569, mod. 35 N.Y.2d 853, 363 N.Y.S.2d 89, 321 N.E.2d 880...