In Holtzman, the court held that the trial court does not have the power to terminate a criminal proceeding by default by entering a trial order of dismissal on the merits where no evidence had been presented and the merits of the case had not yet been heard (see also, People v Douglass, 60 N.Y.2d 194, 200-206, supra [discussing the trial court's lack of authority to dismiss a criminal case for "failure to prosecute" or "calendar control"]).
In People v. Fuller, 57 N.Y.2d 152, 455 N.Y.S.2d 253 (1982), the New York Court of Appeals applied a narrow exception to the preservation doctrine in a case where the trial court exceeded its statutory authority, thereby levying an unlawful sentence.
2010 N.Y. Slip Op. 2435 (N.Y. 2010) Cited 108 times
Finding defendant's claim that the evidence was legally insufficient to prove that he acted with the requisite mens rea to be unpreserved because he failed to argue it with particularity in his motion at trial
In Matter of Schumer v Holtzman (60 N.Y.2d 46, 55), a case involving removal, we held that generally a public prosecutor should not be removed unless necessary to protect a defendant from "actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence" (id.; see also, People v Herr, 86 N.Y.2d 638; People v Jackson, supra).
In Matter of Dondi v Jones (40 N.Y.2d 8, 13, supra), we recognized that prohibition would be an appropriate remedy if it were found that a Special Prosecutor was exceeding the authority conferred upon him through Executive Order by prosecuting a particular criminal defendant under an existing indictment.
Finding no "manifest necessity" where mistrial declared due to the absence of the defendant's attorney because of a death in the family and the court's belief that the trial had to terminate by the end of the week because the court and several jury members had vacation plans