 |
 |
|
|
|
|
|
|
|
| | | |
|
|
|
|
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
1
.
OPINION
|
EXTRACTED KEY WORDS
COURT APPELLATE TERM DISTRICT DEFENDANT MERITS JUDGE PROSECUTION MEMORANDUM LAWS CPL FACTS FIRE DISTRICT IMMUNITY NOISE ORDINANCE VIOLATION PUBLICATION RESPONDENT JUDICIAL DISTRICTS SUBMISSIONS PURSUANT REVIEW RESOLVE MATTER CONS LAWS PRACTICE COMMENTARIES PREISER NY2D BAR INNOCENCE GUILT |
AppT No. 99 SSM 10
The People &c.,
Appellant,
v.
Gary Schaum,
Respondent.
_________________________________________________________________
2002 NY Int. 78
June 13, 2002
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by J. Timothy Shea, Jr., for appellant.
Submitted by Mark A. Murray, for respondent.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of Appellate Term should be reversed, and the case remitted
to Appellate Term for consideration of the merits of the appeal.
Defendant was charged with a violation of a noise ordinance in the
Town of Islip. After a bench trial, District Court granted defendant's
motion to dismiss, holding that defendant was entitled to immunity
from prosecution. Because defendant was acting within the scope of his
duties as a firefighter for a municipal fire district, the court
reasoned that the public safety concerns of the fire district
precluded prosecution under the noise ordinance. The court, however,
declined to rule on the underlying facts of the charged offense. The
Appellate Term dismissed the People's appeal, characterizing the
determinations of the District Court as a "verdict of acquittal." A
Judge of this Court granted the People leave to appeal.
The People contend that the District Court's dismissal did not
constitute an acquittal on the merits and that it was error for the
Appellate Term to dismiss its appeal. We agree. When a criminal court
orders dismissal of an accusatory instrument on the ground that there
is a legal impediment to conviction, the People may appeal the
dismissal as of right (see CPL 450.20(1); 170.30(1)(f)). "(S)o long as
the dismissal does not constitute an adjudication on the facts going
to guilt or innocence," such a dismissal is not a bar to further
proceedings (People v Key, , 45 NY2d 111, 117 (1978); see also
SNIPPETS:
|
|
|
| | | |
|
|
