Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 4, #7©

Issue: The motion for a trial order of dismissal

The motion for a trial order of dismissal is the criminal-law equivalent of a motion for a directed verdict, CPLR 4401, that exists in civil law. The motion seeks to end the criminal trial on the grounds that the proof fails to establish a prima facie case. The trial order of dismissal is provided for in CPL 290.10. Handling a Criminal Case in New York, § 18:305.


As with other legal arguments, the motion is made to the judge, outside the presence of the jury. A motion for a TOD is made orally and can be done quite simply: the defense attorney may say, "The defense moves to dismiss the indictment on the grounds that the prosecution has failed to prove a legally sufficient case." Such a perfunctory effort will likely result in a perfunctory denial. Putting more thought and effort into the oral motion is important, given the importance of this motion.


First, move to dismiss each charge because the trial evidence is legally insufficient. Next, explain why the defense contends the evidence is insufficient. It is worthwhile to try and touch all bases at this point: address each element of each charge and how the People's proof fails. Raise lack of corroboration, for example, where appropriate. Preparing a detailed TOD motion prior to trial is worthwhile.


The court must review the evidence in the light most favorable to the prosecution. People v Beecher, 225 AD2d 943, 639 NYS2d 863 (3d Dept 1996). The motion should be denied if the evidence is legally sufficient to establish a lesser included offense. People v Covington, 274 AD2d 840, 711 NYS2d 859 (3d Dept 2000). If the defense fails to make this motion at trial, on appeal the argument of legal insufficiency is barred. People v Gray, 86 NY2d 10, 629 NYS2d 173 (1995); Handling, § 23:78. The motion may be made both at the end of the prosecution's case as well as at the conclusion of all of the evidence. The statute specifically permits the trial judge to reserve decision on the TOD motion until after verdict. CPL 290.10(1)(b). If decision is reserved and the jury's verdict is guilty, the court must determine the motion as it would have been authorized had the court not reserved decision.


If the motion at the end of the people's case is denied and the defense thereafter presents evidence, subsequent review of that denial is waived. Thus, if the defense puts on a case, a post-verdict 330.30 motion requesting the trial court to reconsider its prior determination is improper. People v Hines, 97 NY2d 56, 736 NYS2d 643 (2001). There seems to be a Scylla-Charybdis quality to the holding in Hines. The granting of a trial order of dismissal before the jury renders a verdict bars retrial, based on double jeopardy grounds. People v Brown, 40 NY2d 381, 386 NYS2d 848 (1976). Where the judge grants the TOD after verdict, the people can appeal. People v Marin, 102 AD2d 14, 478 NYS2d 650 (2d Dept 1989); CPL 450.40.


The motion should be granted or denied only on the issue of legal sufficiency of the evidence. A trial judge cannot the dismiss case on the ground that proof beyond a reasonable doubt was not established. Such a decision usurps the function of the jury. Holtzman v Bonomo, 93 AD2d 574, 462 NYS2d 690 (2d Dept 1983).


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