People v. Sabella

Appeal by the People from a trial order of dismissal of the Supreme Court, Kings County, made May 11, 1972 after a non jury trial. During the pendency of this appeal, respondent made a motion to dismiss the appeal on the ground the order was not appealable since it "was in effect a verdict of acquittal.” On June 21, 1972 this court made an order denying the motion, with leave to renew upon the argument of the appeal. The motion was renewed on the argument of the appeal. Appeal dismissed. No appeal lies by the People from a judgment in favor of defendant on the merits of a criminal case. Hopkins, Acting P. J., Latham and Benjamin, JJ., concur; Munder, J., concurs in the result, with the following memorandum: I vote to dismiss the appeal on the ground that a trial order of dismissal based on a consideration of the evidence adduced in a nonjury trial is not appealable. The reasons for my vote are set forth in my memorandum in People v. Fellman (42 A D 2d 764). Martuscello, J., concurs in the result, with the following memorandum: I concur in the dismissal of the appeal for the reason that no order of dismissal appears in the record and because no appeal lies from a decision.