Petition — Kurtz v. New York

80-1510 beware eee |

FEB 28 198t

No e ALEXAND-—k |.. STEVAS,

rK

In The

Supreme Court of the Wnited States

JANUARY TERM, 1981

JAMES R. KURTZ,

Petitioner,

US.

THE PEOPLE OF THE STATE OF NEW YORK

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK

WILLIAM J. McCLUSKY, ESQ.

Attorney for Petitioner

Office and Post Office Address

5 East Church Street

Adams, New York 13605

Telephone: (315) 232-4032

QUESTIONS PRESENTED |

Whether constitutional double jeopardy

provisions prohibit retrial after the trial

Court dismisses an accusatory instrument of

the defendant's own motion, after jeopardy

has attached, for the reason that the pro-

secution failed to make an adequate opening

statement as required by §260.30 of the

New York Criminal Procedure Law.

TABLE OF CONTENTS

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Constitutional and Statutory Provisions Involved......

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Raising the Federal Question.....................

Reasons for Granting the Writ....................

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APPENDIX A

Opinion of Watertown City Court...... . payee nee ees

Decision of Jefferson County Court.................

Opinion of the New York Court of Appeals (Majority) . . .

Opinion of the New York Court of Appeals (Dissent)... .

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TABLE OF AUTHORITIES

Cases:

Burks v. United States, 98S. Ct. 2141,487 US1......

Greene v. Massey, 98S. Ct. 2151, 487 US19.........

Sanabria v. United States, 98 S. Ct. 2170, 437 US 54 ....

United States v. Scott, 98S. Ct. 2187, 437 US 82......

Other Authorities:

Constitution of the United States

Amendment Men Lk . aes Chk ae wees hee

PD i ccke Ede eevee bes epece baa

New York Criminal Procedure Law §260.30........

New York State Vehicle and Traffic Law

In The

Supreme Court of the United States

JANUARY TERM, 1981

No.

JAMES R. KURTZ,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF NEW YORK

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK

James R. Kurtz, the petitioner herein, prays that a writ of

certiorari be issued to review the judgment of the Court of

Appeals of the State of New York.

OPINIONS BELOW

The petitioner’s trial and subsequent dismissal of the in-

formation against him occurred in the City Court of Watertown,

New York before a Judge and Jury. The opinion of the trial

Judge on the motion for dismissal is unreported and is printed in

Appendix A hereto, infra pg. A-1.

The opinion of the County Court for Jefferson County, New

York which affirmed the ruling of City Court and reversed the

ruling in part is reported at 101 Misc 2d 964 and is printed in

Appendix A hereto infra pg. A-5.

The New York Court of Appeais affirmed the action of the

County Court on November 25, 1980 although Associate Judge

Jones wrote dissent, concurred in by Judges Fuchsberg and

Meyer, which is unreported to date, the order of Affirmance and

the dissent are printed in Appendix A hereto, infra pg.A-8.

JURISDICTION

The judgment of the Court of Appeals was entered on

November 25, 1980 (Appendix A, infra pg. A-8).

The jurisdiction of this Court is invoked under 28 U.S.C. §1257

(3).

QUESTIONS PRESENTED

Whether constitutional double jeopardy provisions prohibit

retrial after the trial Court dismisses an accusatory instrument

of the defendant’s own motion, after jeopardy has attached, for

the reason that the prosecution failed to make an adequate

opening statement as required by §260.30 of the New York

Criminal Procedure Law.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States, Amendment V:

_. Nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb. . .

STATEMENT OF THE CASE

On March 2, 1979 petitioner was arrested and charged with

Speeding and Driving while Intoxicated, a misdemeanor both in

violation of sections 1192 and 1180 of the New York State

Vehicle and Traffic Law.

§1192 (2):

Whoever operates a motor vehicle or motorcycle while in

an intoxicated condition or while his ability to operate

such motor vehicle is impaired by the use of a drug as

defined in this chapter shall be guilty of a misdemeanor

and shall be punishable by imprisonment in a

penitentiary, or county jail, for not more than one year,

or by a fine of not more than five hundred dollars, or by

both. Whoever operates a motor vehicle or motorcycle

while in an intoxicated condition after having been con-

victed of operating a motor vehicle or motorcycle and

whoever operates a motor vehicle or motorcycle while his

abaility to operate such motor vehicle is impaired by the

use of a drug, as defined in this chapter, after having been

convicted of operating a motor vehicle or motorcycle

while his ability to operate such motor vehicle is im-

paired,by the use of a drug as defined in this chapter shall

be guilty of a felony and shall be punishable by imprison-

ment for not less than sixty days nor more than two years

or by a fine of not less than two hundred dollars nor more

than two thousand dollars, or by both such imprisonment

and fine. For the purposes of this section a prior con-

viction for operating a motor vehicle or motorcycle while

in an intoxicated condition or while one’s ability to

operate a motor vehicle is impaired by the use of a drug

as defined in this chapter shall be limited to those con-

victions had within ten years of the time of the instant

alleged offense.

§1192 (3):

Upon the trial of any action or proceeding arising out of

acts alleged to have been committed by any person

arrested for operating a motor vehicle or motorcycle

while in an intoxicated condition or while ability to

operate is impaired by the consumption of alcohol, the

court may admit evidence of the amount of alcohol in the

defendant’s blood taken within two hours of the time of

the arrest, as shown by a medical or chemical analysis of

his breath, blood, urine or saliva. For the purposes of this

section (a) evidence that there was, at the time, five-

hundredths of one percentum, or less, by weight of alcohol

%

r%

in his blood is prima facie evidence that the defendant

was not in an intoxicated condition; (b) evidence that

there was, at the time, more than five-hundredths of one

per centum and less than fifteen-hundredths of one per

centum by weight of alcohol in his blood is relevant

evidence, but it is not to bé given prima facie effect, in

indicating whether or not the defendant was in an in-

toxicated condition; (c) evidence that there was, at the

time, ten-hundredths on one per centum, or more, by

weight of alcohol in his blood, may be admitted as prima

facie evidence that the defendant’s ability to operate a

motor vehicle or motorcycle was impaired by the con-

sumption of alcohol; (d) evidence that there was, at the

time, fifteen-hundredths of one per centum, or more, by

weight of alcohol in his blood, may be admitted as prima

facie evidence that the defendant was in an intoxicated

condition.

At the trial a jury was drawn and sworn and the prosecutor

delivered his opening statement. Immediately thereafter,

petitioner’s counsel moved to dismiss the information on the

ground that the people’s opening statement was inadequate as a

matter of law. After arguments in chambers, the trial court

reserved decision. The trial continued over the objection of the

prosecutor who mentioned that he could amplify his statement,

but he never moved to so do. After one witness testified, the trial

recessed for the day. The following day after further arguments

in chamber, the trial Judge dismissed the information on the

ground that the prosecutor’s opening statement was insufficient

as a matter of law and further held that the prosecutor could not

resubmit the charge due to double or former jeopardy.

On December 6, 1979, the Jefferson County Court affirmed the

dismissal but reversed as to double or former jeopardy and

remanded the case to the Watertown City Court for a new trial.

On November 25, 1980 the New York Court of Appeals affirmed

that judgment with opinion. (Appendix A, infra pg.A-8.)

Both the County Court decision and the decision of the Covrt

of Appeals agreed with the trial Court that the prosecutor's

opening statement was inadequate as a matter of law.

RAISING THE FEDERAL QUESTION

The Petitioner in his motion for dismissal in City Court raised

the Constitutional question of double jeopardy, inasmuch as his

motion was after the first juror was sworn.

The City Judge agreed with petitioner’s claim of Con-

stitutional double jeopardy. The petitioner reasserted these

federal Constitutional claims in the Jefferson County Court

which nevertheless reversed that portion of the City Court

decision.

The petitioner reasserted these federal Constitutional claims

in the New York Court of Appeals which nevertheless affirmed

the County Court. However, Associate |Judge Jones in a dissent

joined in by Judges Fuchsberg and Meyer protested:

Retrial is now barred by the double jeopardy clause

(Appendix A, infra pg.A-16.)

And the majority stated:

We must now determine whether defendant’s retrial is

prohibited by the doctrine of double jeopardy (Appendix

A, pg. A-12.)

REASONS FOR GRANTING THE WRIT

1. The decision below is in conflict with and in defiance of this

Court’s rulings on the doctrine of double jeopardy.

Petitioner stands in the position of having to stand trial on a

charge for which he has been formerly in jeopardy. That deter-

mination is so patently at odds with the controlling decisions of

this Court and is so serious a threat to the continuing vitality of

those decisions as to call for immediate corrective action.

The Fifth Amendment protection which cloaks this petitioner

from prosecution after having been placed in jeopardy is made

abundantly clear in Burks v. United States 98 S. Ct. 2141, 437 US

1; Greene v. Massey, 98 S. Ct. 2151, 437 US 19; Sanabria v.

United States 98 S. Ct. 2170, 437 US 54; United States v. Scott 98

S. Ct. 2187, 437 US 82.

The key factor in this case is given, the premises that the pro-

secutor’s opening statement was inadequate and that the trial

Judge dismissed the case on its merits, is that trial Court deter-

mination an adjudication on the facts going to guilt or innocence

of this petitioner?

At a minimum the prosecutor should set forth the nature of

the charge against the accused and state briefly the facts he

expects to prove, along with evidence he plans to introduce in

support of the same and that prosecutor does not make such a

statement does not the trial Court then make a determination of

the facts? For the prosecutor cannot introduce at trial what he

does not say in his opening. Why else would the Court of Appeals

say the trial Court “should have permitted the prosecutor to

supplement his opening to the jury”? Why supplement or amend

what is unnecessary?

Since the prosecution would be barred from introducing

evidence of the crime charged, the prosecution failed to supply

any evidence to prove the essential elements of the crime, the

petitioner was denied due process of law requiring the granting

of this petition.

Once a reviewing Court has determined that the evidence

introduced or to be introduced at trial was insufficient to sustain

the verdict, a re-trial is precluded. See Burks v. United States,

supra.

In any event, the petitioner cannot be made to stand trial

again as the trial Court made a ruling on the merits, “I therefore

find that this is a final determination... and that a resub-

mission is precluded.”

‘The New York Courts have either refused to give effect to the

rulings of this Court or they have misinterpreted the importance

of these decisions. This Court has said:

When a defendant has been acquitted at trial he may not

be retried on the same offense, even if the legal rulings

underlying the acquittal were erroneous. (Sanabria v.

U.S. 988. Ct. 2170, 437 US 54)

As in Sanabria, the trial Court here found the description of

the offense too narrow to warrant the admission of certain

evidence. Even assuming that ruling was erroneous, there was

an acquittal for insufficient evidence.

That judgment of acquittal, however erroneous, bars

further prosecution on any aspect of the court and hence

bars appellate review of the trial Court’s error. (Sanabria

v. U.S., supra)

The decision below will be taken by the New York prosecutors

as a signal that this Court’s prior decisions respecting the Fifth

Amendment protections to persons placed once in jeopardy need

not be respected or followed.

The situation is thus one where the New York Courts and the

New York prosecutors need to be reminded that the con-

stitutional standards and protections in this area have not been

relaxed or repealed.

CONCLUSION

For these various reasons, this petition for a Writ of Certiorari

to review the judgment of the New York Court of Appeals should

be granted.

Respectfully submitted,

WILLIAM J. McCLUSKY, ESQ.

Attorney for Petitioner

Office and Post Office Address

5 East Church Street

Adams, New York 13605

Telephone: (315) 232-4032

APPENDIX A

A-1

OPINION OF WATERTOWN CITY COURT

IN CHAMBERS:

THE COURT: This is a decision on Mr. McClusky’s motion to

dismiss for failure to properly open on behalf of the prosecutor.

This is a serious motion that goes to the heart of this particular

case in my opinion, and I have asked counsel to do research. They

have. I thank them. We’ve had long discussions concerning it.

First of all, I would like to read the predecessor to the present

Criminal Procedure Law, Section 260.30(3), which is the Code of

Criminal Procedure, Section 388(1). Along with the heading

sen’ nce that reads as follows: “The jury having been impaneled

and sworn, the trial must proceed in the following order: 1) The

District Attorney or other counsel for the People must open the

case.” As enacted and is still true to date, the Criminal

Procedure Law which supplanted the Code of Criminal

Proc ‘ure, particular Section 260.30(3), together with the head

sente.we reads as follows: “The order of a jury trial in general is

as follows: 3) The People must deliver an opening address to the

jury.” I do not find any significant different in the two statutes

wherein the District Attorney’s duties are set forth at either

greater or lesser length. I find them practically identical, and

therefore for that reason I believe that portion of the law which

pertained to Section 338(1) in the nature of cited cases is

probably still good law and applies to Section 260.30(3) of the

Criminal Procedure Law. To that end I will quote Pitler’s, The

New York Criminal Practice at Page 640, Section 12.31. “The

CPL requirement for an opening statement by the People

continues the practice prescribed by Subdivision 1 of Section 388

of the Code of Criminal Procedure.” And at Page 641 I again

quote, “Pre-CPL decisions seem to require that facts constituting

the crime had to be set forth in the opening address.” I now quote

again from an authoritative, see Zett, New York Criminal

Practice, Volume 6 at Page 44072, Paragraph 44.101, “Thus, the

opening statement should be designed to acquaint the jury with

A-2

Opinion of Watertown City Court

the nature of the case and the issues of fact involved.” On Page

44-72 under Paragraph 44.102, and I will again quote, “Ad-

ditionally he is” — referring to the prosecutor — “advised to

detail significant facts which support the allegations made in the

indictment or information.” Continuing, “The prosecutor during

his opening statement is advised to make an affirmative state-

ment of ultimate facts to protect against the defense motion to

dismiss after the People’s opening statement on the grounds of

failure to state a prima facie case.” Subdivision B at Page 44-72

I'll further quote from. “It has been held that the purpose of the

People’s opening statement is to afford the jury a preview of

issues for their further understanding and to allow them to more

intelligently follow the evidence that is adduced to trial. In

short, the opening constitutes the prosecution's introduction of

the case to the jury and is a capsulized view of the evidence to be

presented.” I heard yesterday originally the prosecutor's opening

statement and yesterday I had our stenographer read it back to

me. For purposes of this decision, within the last twenty minutes

I had it read back to me again. I find from the law that I have

just cited and other authorities cited to me this morning that

under the guidelines given by these authorities the prosecutor's

address or opening to the jury was insufficient and I grant the

motion to dismiss on that ground. I will further add — and I am

now referring to the case of People against Coppa at 394 Supp.

2nd, 219, at Page 222 — There is no jurisdiction in this Court to

entertain the appeal — this was in my own words now. This was

later commented on and reversed by the Court of Appeals, but

the following statement was not mentioned by the Court of

appeals: “And a resubmission of the matter to the grand jury is

precluded by Subdivision 4 of CPL 210.20. That states in fact,

210.20(4), “Upon dismissing an indictment or a count thereof

upon any of the grounds specified in Paragraphs a, b, c, and i of

Subdivision 1, the Court may upon application of the People in

its discretion authorize the People to submit the charge or

A-3

Opinion of Watertown City Court

charges to the same or another grand jury. When the dismissal iv

based upon some other ground, such authorization may not be

granted. In the absence of authorization to resubmit, the order of

dismissal constitutes a bar to any further prosecution of such

charge or charges by indictment or otherwise, in any criminal

court within the county.” And elsewhere in the Criminal

Procedure Law in relation to informations — and I refer to

Section 170.45 of the Criminal Procedure Law and other areas as

well — I firmly believe that the motion to dismiss this in-

formation based on that section and on others is controlled by

Section 210.20, and I therefore find that this is a final deter-

mination, outside of any rights of appeal, that the People have,

and that a resubmission is precluded by Section 210.20(4) and the

Coppa case. I will therefore at this time, Gentlemen, excuse the

jury.

MR. McCLUSKY: Thank you, Judge.

(In Open Court at 12:09 p.m., Court resumes. Mr. Harberson

not present.)

THE COURT: I note the prosecutor is not here. I don’t know

where he is. Mr. McClusky, do you want to see if he intends to

come in?

MR. McCLUSKY: I think he might have left, Judge.

(Mr. McClusky left courtroom and returned momentarily.)

MR. McCLUSKY: He’s gone, Judge.

THE COURT: All right, I will proceed in any event so I will not

unduly delay the jury. Ladies and Gentlemen, I apologize for

holding you up this morning. I want to advise you that the

reason for the delay was that I had to consider some serious

questions of law which weve raised by the attorneys in Cham-

bers. I have done that and as a result of my consideration of the

law I have decided to dismiss the case at this time on a question

A-4

Opinion of Watertown City Court

of pure law. It has nothing in fact to do with any deliberations

that were going to be put to you and it has nothing to do with

you as jurors. That is my prerogative and you'll recall when I

gave you your instructions that certain prerogatives were mine

and certain prerogatives were yours, and I chose to exercise

mine. Under the circumstances, the charge now being dismissed,

you're still on the jury panel and I believe that your next time

for appearance in this Court is on Monday morning. I do not

believe we'll have ano her case ready for you until then. So

thank you very much for being here and for your service and for

your many hours. You appeared to be very attentive and we

appreciate that. We'll see you back here Monday morning at 10

o'clock. Court’s in recess.

(At 12:13 p.m., Court recessed.)

A-5

DECISION OF JEFFERSON COUNTY COURT

STATE OF NEW YORK

COUNTY COURT JEFFERSON COUNTY

THE PEOPLE OF THE STATE OF NEW YORK

Appellant

-VS-

JAMES R. KURTZ,

Defendant-Respondent.

Decision 79-1766

APPEARANCES:

JAMES C. HARBERSON, JR.

Assistant District Attorney

WILLIAM J. McCLUSKY, ESQ.

Attorney For Defendant

AYLWARD, J:

This proceeding is an appeal by the People from an order of the

trial court dismissing the accusatory instrument after the trial

had commenced with the taking of some testimony, because of

the inadequacy of the prosecutor's opening statement.

Trial of this issue commenced with the selection of a jury. At

the end of the prosecutor’s opening statement defense counsel

moved to dismiss claiming that the opening statement was

inadequate as a matter of law. Argument was held in chambers

and the trial judge reserved decision. The trial continued with

the taking of testimony. The following day, the prosecutor moved

to reopen and defense counsel objected since testimony had been

taken. The trial court denied the prosecutor’s motion to reopen

A-6

Decision of Jefferson County Court

and then rendered its decision dismissing the case because of the

inadequacy of the opening statement.

The present Criminal Procedure Law and the former Code of

Criminal Procedure require the prosecutor to make an opening

statement. There are not any statutory guidelines as to what

constitutes an adequate opening statement.

This court has reviewed the opening statement and concurs

with the trial court that the prosecutor’s statement was in-

sufficient in that it failed to state any facts constituting the

crime of Driving While Intoxicated which the prosecutor in-

tended to prove. However, there does not appear to be any bad

faith on the part of the prosecutor in his failure to make an

adequate opening.

The court’s allegiance is both to the People and to the defen-

dant — on behalf of the defendant to see that he receives a fair

trial, on behalf of the People to see that the defendant does not

escape a just verdict because of a technicality which may be

correctable and which does not dispose of the issue of guilt or

innocence on the merits.

This court disagrees with the trial procedure that ensued after

the defendant made his motion to dismiss. The trial court should

have decided that motion prior to the taking of testimony and in

the event that the trial court determined that the opening state-

ment was insufficient, it should have permitted the prosecutor to

reopen.

In the instant case and because of the delayed decision, the

trial court should have granted the prosecutor's motion to reopen

and declared a mistrial pursuant to CPL §280.10(3), if necessary.

Defendant’s counsel contributed to the dilemma in consenting to

the procedure whereby the trial continued with the taking of

testimony prior to the court’s decision on defendant's motion and

by defense counsel urging the prosecutor to agree to that

procedure.

A-7

Decision of Jefferson County Court

The next issue is whether or not the defendant will be placed in

double jeopardy in the event a retrial is ordered.

This trial was aborted by the defendant’s motion to dismiss.

The order of dismissal by the trial court was not a determination

of defendant’s guilt or innocence since the determination was

not based on the merits of any evidence presented during the

trial. The order of dismissal simply decided that the People had

erred procedurally in failing to comply with CPL Section

260.30(3).

While jeopardy had attached with the selection of a jury, there

does not appear to be any basis to hold that the defendant will be

placed twice in jeopardy upon a retrial since it was the defen-

dant’s motion that concluded the trial proceedings prior to an

evidentiary determination on the merits. People v. Key, 45

NY2d 111, Burks v. United States, 98 SCt 2141, 2148, 2149.

In dismissing the accusatory instrument, the trial court

improperly relied on §CPL 210.20(h). Motions for dismissal

under that subsection must be made within forty-five days of

arraignment and are essentially pre-trial motions.

This appeal to this intermediate appellate court is authorized

by People v. Coppa, 45 NY2d 244, because of the trial court’s

reliance on CPL §210.20, even though it was an erroneous

reliance.

The judgment is reversed and the matter remanded to the City

Court of Watertown for a new trial.

This decision is made solely on the law and constitutes the

order of this court.

Dated: December 6, 1979

ls! John V. Aylward

Jefferson County Judge

A

OPINION OF THE

NEW YORK COURT OF APPEALS

(Majority)

STATE OF NEW YORK

COURT OF APPEALS

CoCt No. 540

The People &c.,

Respondent,

v.

James R. Kurtz,

Appellant.

(540)William J. McCluskey, Adams, for appellant.

Lee Clary, DA, Jefferson County (Donald R. Gerace of counsel)

for respondent.

JASEN, J.:

This appeal presents the issue whether constitutional or

statutory double jeopardy provisions prohibit retrial after the

trial court dismisses the accusatory instrument on the defen-

dant’s own motion for the reason that the prosecutor failed to

make an adequate opening statement as required by Criminal

Procedure Law section 260.30. |

On March 2, 1979, the defendant was arrested and charged ina

simplified traffic information with speeding and driving while

intoxicated. (Vehicle and Traffic Law, §§ 1180, 1192.) On June

20. 1979, trial was held in City Court, City of Watertown. After

the jury was selected and sworn, the prosecutor delivered his

opening statement. Immediately thereafter, defense counsel

moved to dismiss the information on the ground that the

People’s opening statement was inadequate as a matter of law.

After arguments were heard in chambers, the trial court

reserved decision on the motion. Over the objection of the

A-9

Opinion of the New York Court of Appeals

(Majority)

prosecutor, who offered to amplify any inadequacies in his open-

ing, the trial continued at the behest of defense counsel. After

one witness had testified, the trial was recessed for the af-

ternoon. The following day, the prosecutor moved for permission

to supplement his opening statement to the jury. Defense

counsel objected to this motion on procedural grounds. Shortly

thereafter, the trial court denied the prosecutor’s motion to

supplement his opening and then dismissed the information on

the ground that the prosecutor’s opening statement to the jury

was insufficient as a matter of law.

On appeal, County Court, Jefferson County, reversed and

remanded the case to City Court for a new trial. While County

Court agreed with the trial court that the prosecutor’s opening

statement was inadequate in that it failed to state any of the

facts constituting the offenses which the prosecutor intended to

prove, County Court disapproved of the procedure utilized by the

trial court subsequent to the defendant’s motion to dismiss. The

court stated that the trial court should have determined the

motion before allowing the trial to continue and, upon deciding

the prosecutor’s opening statement was inadequate, it should

have permitted the prosecutor to supplement his opening to the

jury. Finally, County Court rejected defendant’s contention that

a reversal and new trial was barred by the doctrine of Double

Jeopardy. The court held that retrial was not precluded as “it

was the defendant’s motion that concluded the trial proceedings

prior to an evidentiary determination on the merits.” There

should be an affirmance.

At the outset, we note our agreement with the determination

reached by the courts below that the prosecutor’s opening

statement was inadequate. Criminal Procedure Law section

260.30, which sets forth the order of events in a criminal jury

trial, provides that the “people must deliver an opening address

to the jury.” (CPL § 260.30, subd 3 [emphasis supplied].) This

A-10

Opinion of the New York Court of Appeals

(Majority)

opening statement should be a capsulized version “of the

evidence that [the prosecutor] expects to present, and the claim

that he will make with reference thereto, to the end that the

jury, upon listening to the evidence, may better understand and

appreciate its connection and bearing upon the case.” (People v

Benham, 160 NY 402, 434; see also People v Wade, 35 AD2d 401,

403; People v Oakley, 10 AD2d 457, 459, revd on other grounds 9

NY2d 656; see generally 3 Wharton’s Criminal Procedure, § 493;

23A CJS, Criminal Law, § 1085.) Moreover, we have held that the

prosecutor’s opening statement can neither be waived (People v

Levine, 297 NY 144, 147; People v McLaughlin, 291 NY 480, 483;

but cf. People v Rivara, 33 AD2d 567), nor does the reading of a

short indictment constitute an adequate opening to the jury

(People v Levine, supra, at pp 146-147).

Although the Criminal Procedure Law does not specify the

requisite contents of the prosecutor’s opening statement, at a

minimum the prosecutor generally should set forth the nature of

the charge against the accused and state briefly the facts he

expects to prove, along with the evidence he plans to introduce in

support of the same. (See People v Benham, 160 NY 402, 434,

supra; People v Wade, 35 AD2d 401, 403, supra.) In this case, the

opening statement merely consisted of a brief summary of the

evidence to be introduced and a listing of the names of the

witnesses who were to testify. The prosecutor failed in all

respects to delineate the particular offenses with which the

defendant was charged and how these charges were to be proven.

Such an incomplete recitation simply fails to satisfy the

statutory requirement that the prosecutor make an opening

statement to the jury. (CPL § 260.30, subd 3, supra.) That is not

to say that the prosecutor must reveal all the evidence he intends

to offer during the trial; but certainly the jury should hear suffi-

cient evidence to intelligently understand the nature of the case

they have been chosen to decide.

A-11

Opinion of the New York Court of Appeals

(Majority)

We also are in agreement with County Court’s conclusion that

the trial court erred in allowing the trial to proceed without first

disposing of the defendant’s motion to dismiss. The trial court

should have ruled on the motion and given the prosecutor the

opportunity to correct the deficiency before proceeding with the

trial. In failing to do so, the trial court abused its discretion.

Although heretofore we have not passed directly upon the

propriety of a dismissal following an incomplete opening by the

prosecutor, we have stated that “absent bad faith or undue

prejudice, a trial will not be undone” simply because there was

some defect in the prosecutor’s opening to the jury. (People v

DeTore, 34 NY2d 199, 207, cert den 419 US 1025.) Moreover,

although a trial court can no doubt direct acquittal based on the

prosecutor's opening statement, this should be done only upon an

affirmative showing that the prosecutor is not entitled to a

conviction because the charge cannot be sustained under any

view of the evidence and then only after the prosecutor has been

given an opportunity to correct the deficiency in his opening.

(See People v Coppa, 57 AD2d 189, 192, revd on other grounds 45

NY2d 244; People v Handford, 40 AD2d 529.) Indeed, the

overwhelming majority of courts faced with such motions to

dismiss have adopted the view that they should be denied unless

it clearly appears from the opening statement that the defendant

cannot be lawfully convicted and then only after the prosecutor

has been made aware of the difficulty and fails or is otherwise

unable to correct it. (See, e.g., Hanley v United States, 416 F2d

1160, cert den 397 US 910; United States v Dietrich, 126 F 676:

Chatman v State, 164 Ind App 97; State v Gray, 423 SW2d 776

[Mo 1968]; see generally Ann., Power of Trial Court to Dismiss

Prosecution or Direct Acquittal on Basis of Prosecutor's Opening

Statement, 75 ALR3rd 649.)

In this case, the prosecutor's opening statement, although in-

complete, did not contain any information that would indicate

A-12

Opinion of the New York Court of Appeals

(Majority)

that the charges against the defendant could not be sustained,

such as facts constituting a complete defense. (United States v

Dietrich, 126 F 676, supra.) Rather, the only deficiency in the

opening statement was that it did not adequately amplify the

charges against defendant and the facts to be proven in support

thereof. Moreover, before dismissing the information, the trial

judge not only failed to inform the prosecutor of the nature of

the defect in his opening, but denied him the opportunity to

correct this deficiency before permitting the trial to go forward.

As County Court concluded, such action was an abuse of

discretion, contrary to law.

The better practice concerning such motions directed at the

adequacy of the prosecutor’s opening statement would be that a

motion should be made immediately after the prosecutor has

completed his opening to the jury. The trial court should then

inform the prosecutor of the nature of the defect, if any, and

afford him an opportunity to rectify it. If the prosecutor is

unable to do so, then the motion to dismiss the accusatory instru-

ment must be granted. Under no circumstances should the court

allow the trial to proceed without first ruling on the motion. As

mentioned earlier, it was the belated disposition of the motion

which has created the difficulty in this case, a problem which

should be avoided in all other cases. However, our analysis does

not end here for now we must determine whether defendant's

retrial is prohibited by the doctrine of Double Jeopardy.

In this state, a defendant’s right not to be twice put in

jeopardy for the same crime is protected by the double jeopardy

clauses of the Federal and State Constitutions as well as by

statutory double jeopardy provisions. (U S Const, 5th amdt; N Y

Const, art I; CPL § 40.20.) Specifically, as the doctrine of Double

Jeopardy has developed in New York in relation to midtrial

dismissals, “reprosecution is permitted whenever a dismissal has

A-13

Opinion of the New York Court of Appeals

(Majority)

been granted on motion by defendant, so long as the dismissal

does not constitute an adjudication on the facts going to guilt or

innocence [even where] dismissal occurs after jeopardy has

attached.” (People v Key, 45 NY2d 111, 117.) Indeed, in its most

recent excursion into the Double Jeopardy area, the Supreme

Court has implicitly approved of this approach. (See Burks v

United States, 437 US 1; Greene v Massey, 437 US 19; Sanabria v

United States, 437 US 54; United States v Scott, 437 US 82; see

also Swisher v Brady, 438 US 204.) As presently constituted

under this recent line of cases, the doctrine distinguishes be-

tween trial orders terminating the trial in the defendant’s favor

prior to any determination of guilt or innocence and those orders

which terminate the trial based on evidentiary insufficiency.

(Burks v United States, supra, at pp 14-18; United States v Scott,

supra, at pp 94-99.) Because a dismissal based on insufficient

evidence is tantamount to an acquittal, reprosecution is

precluded in the latter category of cases. (See, e.g., People v

Mayo, 48 NY2d 245.) Retrial of cases falling within the former

category of dismissals, however, is permissible because “the

defendant, by deliberately choosing to seek termination of the

proceeding against him on a basis unrelated to factual guilt or

innocence of the offense of which he is accused, suffers no injury

cognizable under the Double Jeopardy Clause”. (United States v

Scott, supra, at pp 98-99; cf. People v Barley, 47 NY2d 965.)

In the case before us, the trial court dismissed the action on

defendant’s motion solely because of the insufficiency of the

prosecutor’s opening statement. As mentioned earlier, this

dismissal was not premised on any evidentiary determination

that the People were not entitled to a conviction or that the

prosecutor had acted in bad faith by deliberately delivering an

incomplete opening in order to terminate the trial over defen-

dant’s objection. (Cf. [llinois v Sommerville, 410 US 458; Hall v

Potoker, 49 NY2d 501; People v Michael, 48 NY2d 1.) Rather,

A-14

Opinion of the New York Court of Appeals

(Majority)

dismissal here was the result of the trial court’s misconception of

the requirements of subdivision 3 of Criminal Procedure Law

section 260.30 and occurred without any evaluation on the trial

court’s part as to the factual elements of the offenses with which

defendant was charged.! Inasmuch as this dismissal, erroneous

as it was, in no sense resembles an acquittal of the defendant and

indeed appears functionally indistinguishable from the

declaration of a mistrial (see Lee v United States, 432 US 23, 31),

retrial of defendant is prohibited neither by the double jeopardy

clauses of the State and Federal Constitutions nor by the

statutory double jeopardy provisions.

This is not to say that retrial will be permitted whenever the

trial terminates on the defendant’s motion based on the

inadequacy of the prosecutor’s opening statement. Where, for

instance, the prosecutor in his opening statement clearly and

deliberately admits a fact which defeats all possibility for con-

viction and the case is then dismissed, retrial on the same charge

would be forbidden because there has been a determination

involving the factual innocence of the accused.” Since here there

1Unlike the dissent, we place no reliance on the trial court's characterization

of the dismissal herein. Whatever the trial court may have envisioned with

respect to the possibility of reprosecution is irrelevant for as our decision in

People v Key (45 NY2d 111, 119, «zra) clearly states: “[A] Trial Judge's

interpretations of the double jeopardy clause should not determine whether

appeal and retrial are permissible. It is the nature of the order, and not the

Trial Judge's views on double jeopardy, that should govern.”

2Such a dismissal would indeed be rare. As one commentary has pointed out.

“if the prosecutor, defense counsel, and the court discharge their pretrial dis-

covery responsibilities, it would appear next to impossible for a case to come

to trial in which the prosecutor might be forced to admit. in his opening

statement, the truth of a fact which constitutes a complete defense.” (Ann..

Power of Trial Court to Dismiss Prosecution or Direct Acquittal on Basis of

Prosecutor's Opening Statement, 75 ALR3d 649, 656, supra.)

A-15

OPINION OF THE

NEW YORK COURT OF APPEALS

(Dissent)

was no such determination in the prior trial, the doctrine of

Double Jeopardy does not prohibit the People from again trying

defendant for the offenses with which he is charged.

Accordingly, the order of the County Court, Jefferson County,

should be affirmed.

People v Kurtz

No. 540

JONES, J. (dissenting):

In my view the constitutional mandate that “no person shall

be * * * subject for the same offense to be twice put in jeopardy

of life or limb” requires a reversal of the order of County Court

in this case and the dismissal of the accusatory instrument.

Defendant moved to dismiss on the People’s opening, after

jeopardy had attached (CPL 40.30, subd 1, par [b]; Crist v Bretz,

437 US 28). The motion was granted on the ground that “the

prosecutor's statement was insufficient in that it failed to state

any facts constituting the crime of Driving While Intoxicated

which the prosecutor intended to prove”, i.e., specifically, that

there was no statement with respect to proof of intoxication.

Conceptually this must be likened to the granting of a motion, on

the defendant's application made at the close of the People’s case,

for a trial order of dismissal on the ground that the trial

evidence is not legally sufficient to establish the offense charged

(CPL 290.10, subd 1). The dismissal, terminating the trial

proceedings in defendant’s favor, was “an adjudication on the

facts going to guilt or innocence” (People v Key, 45 NY2d 111,

117). It was expressly predicated on a determination with respect

to the sufficiency of the People’s proof; it was not a termination

A-16

Opinion of the New York Court of Appeals

(Dissent)

of the trial on grounds unrelated to factual guilt or innocence.

While the majority ascribes to CPL 260.30 the effect of requiring

the prosecution to “adequately amplify the charges against

defendant and the facts to be proven in support thereof’, it

refuses to regard the trial court’s dismissal on the ground that

the prosecution’s statement was defective as to facts to be proved

as an evaluation by the trial court “as to the factual elements of

the offenses with which defendant was charged” — which ap-

pears to me to be a patent inconsistency.

That the dismissal was thought by the trial court to be on the

factual merit of the People’s case is apparent. In granting defen-

dant’s motion to dismiss the trial court also considered the

possibility of reprosecution of the charge and concluded, “I there-

fore find that this is a final determination, outside of any rights

of appeal that the People have, and that a resubmission is pre-

cluded by Section 210.20(4) * * *.”! Thus, to the extent that thé

characterization of the dismissal by the trial court may be

relevant, it is clear in this instance that the dismissal was not

“in contemplation of” a second prosecution (People v Key, 45

NY2d 111, 119, supra).

Accordingly, retrial is now barred by the double jeopardy

clause (see United States v Scott, 437 US 82, 96-101; cf Finch v

Umted States, 433 US 676).

IThat section 210.20 applies to indictments rather than to felony complaints

does not detract from the clarity of the trial court's intention in this case.

Order affirmed. Opinion by Jasen, J. All concur except Jones, J., who dissents

and votes to reverse in an opinion in which Fuchsberg and Meyer, J.J.

concur.

Decided November 25, 1920

A-17

REMITTITUR

Remattitur

COURT OF APPEALS

STATE OF NEW YORK

The Hon. Lawrence H. Cooke, Chief Judge, Presiding

CoCt No. 540

The People &c.,

Respondent,

James R. Kurtz,

Appellant.

The appellant in the above entitled appeal appeared by

William J. McClusky; the respondent appeared by Lee Clary,

District Attorney, Jefferson County.

The Court, after due deliberation, orders and adjudges that the

order is affirmed. Opinion by Jasen, J. All concur except Jones,

J., who dissents and votes to reverse in an opinion in which

Fuchsberg and Meyer, JJ., concur.

The Court further orders that the papers required to be filed

and this record of the proceedings in this Court be remitted to

the Watertown City Court, there to be proceeded upon according

to law.

I certify that the preceding contains a correct record of the pro-

ceedings in this appeal in the Court of Appeals and that the

papers required to be filed are attached.

ls) JOSEPH W. BELLACOSA

Joseph W. Bellacosa,

Clerk of the Court

Court of Appeals, Clerk’s Office, Albany, November 25, 1980