People v. McIntosh

• Decision Date: 06 May 1991
• Citation: 173 A.D.2d 490,570 N.Y.S.2d 298
• Parties: The PEOPLE, etc., Appellant, v. Hughval Anthony McINTOSH, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 298

570 N.Y.S.2d 298

173 A.D.2d 490

The PEOPLE, etc., Appellant, v. Hughval Anthony McINTOSH, Respondent.

Supreme Court, Appellate Division Second Department.

May 6, 1991.

Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and John F. McGlynn, of counsel), for appellant.

Joseph A. Gentile, Williston Park, for respondent.

Before KOOPER, J.P., and SULLIVAN, LAWRENCE and RITTER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the County Court, Nassau County (Wexner, J.), dated January 18, 1990, which granted the defendant's motion to dismiss Nassau County Indictment No. 69637, charging him with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

ORDERED that the order is reversed, on the law, the motion is denied, the indictment is reinstated, and the matter is remitted to the County Court, Nassau County for further proceedings consistent herewith.

The record reveals that, after the County Court granted the defendant's motion to suppress physical evidence, identification testimony, and inculpatory statements, the People filed a notice of appeal from the suppression order. The notice of appeal, dated August 23, 1989, was accompanied by the required statement pursuant to CPL 450.50(1), which provided in part as follows:

"[T]he People * * * do hereby state * * * that the deprivation of the use of the evidence ordered suppressed has rendered the sum of the proof available to the People with respect to the indictment herein, either legally insufficient or so weak in its entirety that any reasonable probability of obtaining a conviction on the indictment has been effectively destroyed".

Approximately six weeks later, the People moved in this court for leave to withdraw their appeal and CPL 450.50 statement, averring that "the matter has been further reviewed and it has been determined that although the People's case has been considerably weakened by the suppression order, a trial of defendant is the most appropriate procedural avenue". By order of this court dated October 16, 1989, the motion was granted and the appeal was withdrawn. The defendant then moved in the County Court for the dismissal of the indictment, contending that CPL 450.50(2), as interpreted by the Court of Appeals in Matter of Forte v. Supreme Ct. of State of N.Y., 48 N.Y.2d 179, 422 N.Y.S.2d 26, 397 N.E.2d 717, precluded his further prosecution absent a reversal of the suppression order. The County Court agreed and dismissed the indictment. We now reverse.

CPL 450.20(8) authorizes the taking of an appeal by the People from a pretrial suppression order provided that the People file a statement pursuant to CPL 450.50(1) to the effect that they cannot go forward with the case in the absence of the suppressed evidence. In turn, CPL 450.50(2) provides:

"The taking of an appeal by the people, pursuant to subdivision eight of section 450.20, from an order suppressing evidence constitutes a bar to the prosecution of the accusatory instrument involving the evidence ordered suppressed, unless and until such suppression order is reversed upon appeal and vacated".

It is well settled that "CPL 450.50 is designed to limit appeals by the People from interlocutory suppression orders" (People v. Townsend, 127 A.D.2d 505, 507, 511 N.Y.S.2d 858; see, People v. Brooks, 54 A.D.2d 333, 388 N.Y.S.2d 450) by requiring the filing of a statement which indicates that the suppression order is "a functionally final order and an appeal from it is not interlocutory" (Bellacosa, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A, CPL 450.50, at 568). Moreover, the taking of frivolous or unnecessary appeals by the People is further discouraged by the fact that if the appeal proves unsuccessful no further prosecution of the accused will be permitted (see, People v. Casadei, 106 A.D.2d 885, 483 N.Y.S.2d 875, affd., 66 N.Y.2d 846, 498 N.Y.S.2d 357, 489 N.E.2d 244). Accordingly, the Court of Appeals has held that where the People appeal from a suppression order and file the obligatory statement indicating that the order renders the evidence too weak to go forward with the prosecution, the affirmance of that order on appeal precludes the People from further prosecuting the accused either pursuant to the original indictment or upon a superseding indictment obtained through the use of the evidence which was not suppressed (see, Matter of Forte v. Supreme Ct. of State of N.Y., supra ).

The defendant contends that in the instant case, once the CPL 450.50 statement was filed by the People, all further prosecution was barred because a reversal of the suppression order was not obtained. In this regard, he claims that the People's prompt withdrawal of their appeal and CPL 450.50 statement is of no moment. However, the Court of Appeals indicated in Matter of Forte v. Supreme Ct. of State of...