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The accused, for a wrong ruling, may always appeal the case for review to a higher court


The complainant appeals from an order of the County Supreme Court granting the accused man’s motion to dismiss the indictment because of the prosecutor’s alleged failure in his opening statement to the jury to state a legitimate case. The appeal is dismissed.

The accused 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 accused 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 accused man’s motion. The prosecutor then moved to be permitted to add to his opening statement. The motion was denied.

Since the right of the complainant to appeal is purely statutory unless a statutory authority is found for the appeal, it must be dismissed, regardless of the fact that the result does violence to the concepts of fairness.

In arguing against the accused man’s motion to dismiss the indictment, the Assistant District Attorney bring to the Court’s attention that it is the complainant’s position that an appeal from such an order would not lie, that such an order is not cognizable under the Criminal Procedure Law (C.P.L.). There is no provision for the appeal from such an order, and, therefore, since there’s no relief for the complainant and since, on the other hand, if the ruling is adverse to the accused, he does have the right to appeal, the District Attorney submits that if there is any question as to the merits, the ruling should be in favor of the complainant.

The provisions of the Criminal Procedure Law, 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. The law only authorizes dismissal when other jurisdictional or legal impediment to the conviction of the accused for the offense charged exists. That such jurisdictional or legal impediment must be substantial is made clear by the fact that under CPL, 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 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.

It is unfortunate that, by reason of the precipitous action of the trial court, the complainant will not have an opportunity to have the indictment tried on its merits, since there is no jurisdiction in the court to entertain the appeal and a resubmission of the matter to the Grand Jury is precluded by CPL.

While the accused under the criminal procedure is entitled to the benefit of every reasonable doubt on the facts, the complainant 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 complainant have no opportunity or method of reviewing the ruling, as strange as it may seem. The accused, for a wrong ruling, may always appeal the case for review to a higher court; the complainant does not have such privilege, except as hereinafter stated. The trial justices in criminal cases, therefore, should bear this in mind when ruling upon points of law.

Winning and losing a court battle relies quiet heavily on the ability of your counsel. If you want to stand a greater chance of succeeding your legal action, the Kings County Grand Larceny Attorney or the Kings County Robbery Lawyer together with the Kings County Criminal Attorney from Stephen Bilkis and Associates should be by your side.

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