NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9521
SPONSOR: Joyner TITLE OF BILL: An act to amend the criminal procedure law, in
relation to erroneously excluded evidence and trial orders of dismissal,
and repealing certain provisions of such law relating thereto
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.
To conform to controlling law in the area of double jeopardy, we recom-
mend that sections 290.10 and 450.40 of the Criminal Procedure Law be
amended by repealing statutory references to an appellate court's
authority to review erroneously excluded evidence.
As originally enacted in 1970, CPL 290.10 and 450.40 authorized the
People to appeal from a wrongly granted trial order of dismissal entered
prior to the return of a guilty verdict. As part of its review of the
trial court's granting the trial order of dismissal, the appellate court
was authorized to consider whether the trial court had erroneously
excluded admissible evidence that, had it been admitted properly, would
have supplied evidence necessary to meet the People's burden of proof.
Accordingly, in order to provide an adequate record for appeal, the
statute permitted the prosecutor to place on the trial record an "offer
of proof' summarizing the substance of the excluded evidence (see CPL
290.10(3); 450.40(2)).
Subsequently, the New York Court of Appeals, relying on U.S. Supreme
Court precedent, held that double jeopardy principles prohibit any
retrial of a case where a court terminated an action in the defendant's
favor by wrongly granting a trial order of dismissal before the jury
returned a verdict (People v. Brown, 40 N.Y.2d 381 (1976); see also
Donnino, Practice Commentary to CPL § 290.10). The Court later recom-
mended that trial courts "whenever practicable" reserve decision on a
motion for a trial order of dismissal until after the verdict has been
returned to preserve the People's right to appeal (People v. Key, 45
N.Y.2d 111 (1978)). By waiting until after a verdict is delivered to
rule on the trial order of dismissal, any grant of the application does
not implicate double jeopardy because the remedy on appeal is rein-
statement of the verdict, not a retrial.
In the wake of these precedents, the Legislature eliminated the statuto-
ry authority for the People to appeal a pre-verdict grant of a trial
order of dismissal, and instead restricted an appeal from a trial
court's trial order of dismissal to instances where the court reserved
decision until after the jury returned a verdict of guilty (CPL § 450.20
(2) (L.1983, c. 170 § 3). However, in so doing, the Legislature
neglected to repeal several provisions that relied on pre-Brown
doctrines (see e.g., CPL §§ 450.40. 290.10(2) and 290.10(3)). These
provisions, involving the review of erroneously excluded evidence, are
relics of a different era. They often confuse and at times mislead prac-
titioners into believing these provisions have substantive impact.
Incorporating these relics into a legal argument can be, at best, embar-
rassing to the unwary; worse, they can divert attention away from more
substantive appellate arguments. This measure repeals subdivisions 2
and 3 of section 290.10 of the Criminal Procedure Law,* repeals subdivi-
sion 2 of 450.40 of the criminal procedure law** and makes a conforming
amendment to subdivision 1 of that section.
This measure, which would have no fiscal impact, would take effect imme-
diately.
LEGISLATIVE HISTORY:
None. New proposal.
*CPL 290.10(2) and (3) provide as follows:
2. Despite the lack of legally sufficient trial evidence in support of a
count of an indictment as described in subdivision one, issuance of a
trial order of dismissal is not authorized and constitutes error when
the trial evidence would have been legally sufficient had the court not
erroneously excluded admissible evidence offered by the people.
3. When the court excludes trial evidence offered by the people under
such circumstances that the substance or content thereof does not appear
in the record, the people may, in anticipation of a possible subsequent
trial order of dismissal emanating from the allegedly improper exclusion
and erroneously issued in violation of subdivision two, and in antic-
ipation of a possible appeal therefrom pursuant to subdivision two of
section 450.20, place upon the record, out of the presence of the jury,
an "offer of proof' summarizing the substance or content of such
excluded evidence. Upon the subsequent issuance of a trial order of
dismissal and an appeal therefrom, such offer of proof constitutes a
part of the record on appeal and has the effect and significance
prescribed in subdivision two of section 450.40. In the absence of such
an order and an appeal therefrom, such offer of proof is not deemed a
part of the record and does not constitute such for purposes of an ensu-
ing appeal by the defendant from a judgment of conviction.
** CPL 450.40(2) provides as follows:
2. If the appeal is based upon the ground specified in paragraph (b) of
subdivision one, and if the appellate court determines that the evidence
unsuccessfully offered by the people was improperly excluded, and if at
the trial the people made on' offer of proof with respect thereto pursu-
ant to subdivision three of section 290.10, the appellate court, in
making its determination whether the people's evidence would have been
legally sufficient had it not been for the improper exclusion, must
treat the excluded evidentiary matter as it is summarized in the offer
of proof as evidence constituting a part of the people's case.
STATE OF NEW YORK
________________________________________________________________________
9521
IN ASSEMBLY
March 10, 2016
___________
Introduced by M. of A. JOYNER, LENTOL -- (at request of the Office of
Court Administration) -- read once and referred to the Committee on
Codes
AN ACT to amend the criminal procedure law, in relation to erroneously
excluded evidence and trial orders of dismissal, and repealing certain
provisions of such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 2 and 3 of section 290.10 of the criminal
2 procedure law are REPEALED.
3 § 2. Subdivision 1 of section 450.40 of the criminal procedure law is
4 amended to read as follows:
5 1. An appeal by the people from a trial order of dismissal, as
6 authorized by subdivision two of section 450.20, may, as indicated by
7 section 290.10, be based [either (a)] upon the ground that the evidence
8 adduced at the trial was legally sufficient to support the count or
9 counts of the accusatory instrument dismissed by the order[, or (b) upon
10 the ground that, though not legally sufficient, such evidence would have
11 been legally sufficient had the court not erroneously excluded admissi-
12 ble evidence offered by the people].
13 § 3. Subdivision 2 of section 450.40 of the criminal procedure law is
14 REPEALED.
15 § 4. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13999-01-6
