People v. Gesegnet

CourtNew York Supreme Court — Appellate Division
Writing for the CourtMOULE; Expressing the view of a majority of the court
Citation366 N.Y.S.2d 518,47 A.D.2d 333
Decision Date17 April 1975
PartiesPEOPLE of the State of New York, Appellant, v. Richard GESEGNET, Respondent.

Page 518

366 N.Y.S.2d 518
47 A.D.2d 333
PEOPLE of the State of New York, Appellant,
v.
Richard GESEGNET, Respondent.
Supreme Court, Appellate Division, Fourth Department.
April 17, 1975.

Page 519

Edward C. Cosgrove, Dist. Atty., Buffalo, for appellant (Judith Blake Manzella, Buffalo, of counsel).

John W. Condon, Jr., Buffalo, for respondent (Joseph V. Sedita, Buffalo, of counsel).

Before MARSH, P.J., and MOULE, CARDAMONE, MAHONEY and DEL VECCHIO, JJ.

OPINION

MOULE, Justice.

The question presented in this appeal is whether subdivision 2 of section 450.20 of the Criminal Procedure Law, which permits the People to appeal to an intermediate appellate court from a trial order of dismissal, violates defendant's right not to be tried twice for the same offense which would place him in double jeopardy contrary to the Fifth and Fourteenth Amendments to the United States Constitution.

Defendant along with four others was charged in an Erie County Grand Jury indictment with having stolen, criminally possessed, and fraudulently registered two cars, one a 1967 Buick Electra and the other a 1968 Buick Riviera. Upon defendant's motion his case was severed from those of the other four persons and a jury trial was commenced in the Erie County Court. At the close of the People's proof, after 1,500 pages of testimony had been taken, the court entered a trial order dismissing all of the charges against defendant because the evidence failed to show knowledge on his part that either of the cars had been stolen and, further, because there was no evidence that he participated in their theft.

Page 520

The People have appealed to this court under subdivision 2 of section 450.20 of the Criminal Procedure Law, which provides that an appeal to an intermediate appellate court may be taken as of right from 'a trial order of dismissal, entered pursuant to section 290.10 or 360.40.' That provision was a part of the Criminal Procedure Law which became effective in 1971 and had no counterpart in the former Code of Criminal Procedure (see Practice Commentary, McKinney's Consolidated Laws of New York, Vol. 11A, § 450.20).

Defendant urges that to permit the People to appeal in such a situation would violate his constitutional protection against double jeopardy since, if successful, the People's appeal would result in a second trial requiring the swearing of a new jury and the presentation of new evidence. In the alternative, defendant contends that even if the double jeopardy issue were resolved against him, the application of subdivision 2 of section 450.20 of the Criminal Procedure Law in this instance would be ex post facto, since his arrest predated its enactment, and thus would violate his rights under article I, section 10 of the United States Constitution.

The effect of subdivision 2 of section 450.20 of the Criminal Procedure Law has twice been considered by appellate tribunals (People v. Sabella, 35 N.Y.2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569; People v. Underwood, 43 A.D.2d...

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9 practice notes
  • People v. Brown
    • United States
    • New York Court of Appeals
    • June 17, 1976
    ...1 Both the First Department in the present case (48 A.D.2d 95, 368 N.Y.S.2d 171) and the Fourth Department in People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d 518, have concluded in the light of the recent Supreme Court trilogy, that Fellman is no longer controlling and that CPL 450.20 (subd......
  • People v. Brooks
    • United States
    • New York Supreme Court Appellate Division
    • December 22, 1975
    ...have sufficient evidence to convict. Essentially, that was the view adopted by the First and Fourth Departments (see People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d 518; People v. Piazza, 47 A.D.2d 990, 366 N.Y.S.2d 725; People v. Brown, 48 A.D.2d 95, 368 N.Y.S.2d 171). Because of the Judgm......
  • People v. Key
    • United States
    • United States State Supreme Court (New York)
    • March 22, 1976
    ...empaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn (CPL § 40.30(1)(b); People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d 518). Since in the instant matter the jury was sworn there can be no doubt that jeopardy had attached, and since the trial court......
  • People ex rel. Pendleton v. Smith, C--50
    • United States
    • New York County Court
    • July 16, 1975
    ...the prosecution cannot appeal from a trial order of dismissal. People v. Piazza, 47 A.D.2d 990(9), 366 N.Y.S.2d 725; People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d Strangely enough, a look at the old cases shows that since 1912 it has been the New York rule that a trial order of dismissal ......
  • Request a trial to view additional results
9 cases
  • People v. Brown
    • United States
    • New York Court of Appeals
    • June 17, 1976
    ...1 Both the First Department in the present case (48 A.D.2d 95, 368 N.Y.S.2d 171) and the Fourth Department in People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d 518, have concluded in the light of the recent Supreme Court trilogy, that Fellman is no longer controlling and that CPL 450.20 (subd......
  • People v. Brooks
    • United States
    • New York Supreme Court Appellate Division
    • December 22, 1975
    ...have sufficient evidence to convict. Essentially, that was the view adopted by the First and Fourth Departments (see People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d 518; People v. Piazza, 47 A.D.2d 990, 366 N.Y.S.2d 725; People v. Brown, 48 A.D.2d 95, 368 N.Y.S.2d 171). Because of the Judgm......
  • People v. Key
    • United States
    • United States State Supreme Court (New York)
    • March 22, 1976
    ...empaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn (CPL § 40.30(1)(b); People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d 518). Since in the instant matter the jury was sworn there can be no doubt that jeopardy had attached, and since the trial court......
  • People ex rel. Pendleton v. Smith, C--50
    • United States
    • New York County Court
    • July 16, 1975
    ...the prosecution cannot appeal from a trial order of dismissal. People v. Piazza, 47 A.D.2d 990(9), 366 N.Y.S.2d 725; People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d Strangely enough, a look at the old cases shows that since 1912 it has been the New York rule that a trial order of dismissal ......
  • Request a trial to view additional results

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