You are here: / / Pretrial Motion to Dismiss the Accusatory Instrument, Arguing the Facts...
,

Pretrial Motion to Dismiss the Accusatory Instrument, Arguing the Facts Alleged Did Not Constitute the Crime Charged, Preserved the Legal-Sufficiency Issue for Appeal, Despite the Absence of a Motion for a Trial Order of Dismissal on the Same Ground

The Court of Appeals, in a full-fledged opinion by Judge Smith, with three judges dissenting, determined defendant's pretrial motion to dismiss the charges, arguing that the facts alleged by the People did not constitute the crime charged, preserved the “legal sufficiency” issue for appeal, despite the absence of a motion for a trial order of dismissal on the same ground. The defendant was charged with trespass and resisting arrest. The defendant had permission to be on the property.  County court had dismissed the trespass conviction, but upheld the resisting arrest conviction.  The Court of Appeals determined the arresting officer, because of prior dealings with the defendant, did not have probable cause to believe the defendant was trespassing, therefore the resisting arrest charge could not stand either.  The bulk of the majority opinion, and both dissenting opinions, dealt with the preservation issue.  The majority took great pains to explain that this holding did not affect the two leading cases concerning the preservation requirements re: the insufficiency of trial evidence (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56):

As a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected … . When a court rules, a litigant is entitled to take the court at its word. Contrary to what the dissent appears to suggest, a defendant is not required to repeat an argument whenever there is a new proceeding or a new judge.

It is true that a challenge to the sufficiency of the accusatory instrument at arraignment is conceptually different from a challenge based on the proof at trial, and that often an issue decided in one proceeding will not be the same as the issue presented in another. But here the issue was the same. People v Finch, 2014 NY Slip Op 03424, CtApp 5-13-14

 

You might also like
People Could Not Appeal Judge’s Vacation of Defendant’s Conviction and Sentencing as a Youthful Offender—No Statute Allows Such an Appeal
New “Medical Treatment Guidelines” Do Not Exceed Statutory Authority of the Workers’ Compensation Board
VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP).
DEPARTMENT OF AGRICULTURE’S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP).
“Anders” Brief Rejected
RECORDS OF DISCIPLINARY PROCEEDINGS CONCERNING A POLICE OFFICER ARE EXEMPT FROM DISCLOSURE EVEN IF THE IDENTIFYING INFORMATION IS REDACTED (CT APP).
DEFENDANT’S CHALLENGES TO RESTRICTIONS ON VOIR DIRE, HIS ARGUMENT A PRISON SENTENCE DURING COVID VIOLATED THE EIGHTH AMENDMENT, AND HIS CONSTITUTIONAL CHALLENGES TO NEW YORK’S WEAPONS-POSSESSION REGIME, REJECTED; THE DISSENT ARGUED THE PRESUMPTION OF AN INTENT TO USE AN UNLICENSED WEAPON IS UNCONSTITUTIONAL AND VOIR DIRE QUESTIONS RELATED TO GUN CONTROL AND JUSTIFICATION SHOULD HAVE BEEN ALLOWED (CT APP).
TENURED TEACHERS WERE NOT ENTITLED TO A HEARING BEFORE BEING PLACED ON LEAVE BECAUSE THEY DID NOT SUBMIT PROOF OF VACCINATION AGAINST COVID; HEARINGS ARE REQUIRED IN DISCIPLINARY PROCEEDINGS, BUT NOT WHERE, AS HERE, TEACHERS FAIL TO COMPLY WITH A CONDITION OF EMPLOYMENT (CT APP).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Surrogate’s Court Should Have Held a Hearing to Determine the Validity... Courts Charged with Supervising Defendants Found Not Responsible by Reason of...