# Petition — Kurtz v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 911

## Text

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

%

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1445%3A1. Public record. Not legal advice.