Opinion
October 10, 1995
Appeal from the Supreme Court, Bronx County (John S. Moore, J.).
It is clear that no matter what the ground for dismissal, an order granting a motion to dismiss an indictment finally determines the People's case unless reversed on appeal ( People v Coppa, 45 N.Y.2d 244, 249). The order of dismissal at issue herein was entered on the record and is therefore appealable ( see, People v. Silva, 122 A.D.2d 750; cf., Talcott Factors v. Larfred, Inc., 115 A.D.2d 397, lv dismissed 67 N.Y.2d 604).
In both a jury and non-jury trial, "a trial court may not dismiss after opening unless it shall appear from the statement that the charge cannot be sustained under any view of the evidence and it may dismiss then only after the prosecutor has been given an opportunity to correct any deficiency" ( Matter of Timothy L., 71 N.Y.2d 835, 837-838). It has been held that even the failure to mention one of the elements of the crime charged is not fatal ( see, People v. Brown, 104 A.D.2d 696). In this case we find no basis upon which to conclude from the prosecutor's opening statement that the charges against the defendant could not have been sustained under any view of the evidence.
Concur — Wallach, J.P., Kupferman, Ross, Nardelli and Tom, JJ.