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Issues In NY Criminal Law--Vol. 6, #5©

Issue: Trial Order of Dismissal Redux

The motion for a trial order of dismissal is the criminal law equivalent of the civil law's motion for a directed verdict, CPLR 4401. As with other legal arguments, the motion is made outside the presence of the jury.

It is perhaps the most important motion that can be made in a criminal trial.

The TOD motion is provided for in CPL 290.10. The motion should be made whether it is a jury or bench trial.

Legal standard

The motion addresses only the issue of legal sufficiency of the evidence: the judge does not have the power to dismiss the case on the basis that the proof was not established beyond a reasonable doubt. Such a decision usurps the function of the jury. Holtzman v Bonomo, 93 AD2d 574, 462 NYS2d 690 (2d Dept 1983). The trial judge 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 trial judge may grant or deny the motion, or may reserve decision until after the verdict. In fact, reserving decision is the preferred method. People v Key, 45 NY2d 111, 408 NYS2d 16 (1978). If decision is reserved and the jury's verdict is guilty, the trial court must determine the motion as it would have been authorized had it not reserved decision. CPL 290.10(1).

Making the Motion

The defense can make a TOD motion quite simply, e.g.: "The defense moves to dismiss the indictment on the grounds that the prosecution has failed to prove a legally sufficient case." The result of such a perfunctory motion is usually a perfunctory denial.

To be sufficient, the motion must be detailed. Each element of each crime charged should be addressed in the motion. Drafting the motion before trial is one way to cover all the likely issues.

If accomplice testimony or a defendant's statement is introduced, the motion should address lack of corroboration. People v McGrath, 262 AD2d 1043, 693 NYS2d 358 (4th Dept 1999).

Renewal of Motion

In People v Hines, 97 NY2d 56, 736 NYS2d 643 (2001), the motion for a trial order of dismissal at the end of the People's case was denied. Defendant then put on substantial proof in his case that actually bolstered the prosecution's case. Defendant subsequently moved to reconsider the ruling that had denied defendant's motion for a trial order of dismissal after the People's case, and argued that only the evidence elicited during the People's case-in-chief should be considered (to avoid having to deal with damaging evidence inadvertently elicited during the defendant's case. The Court of Appeals held that by choosing to put on evidence, defendant waived his right to have only the People's evidence examined for legal sufficiency, and could not avoid the adverse evidence elicited during the defendant's case on his subsequent motion. Hines stated: "we have held that 'a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People's case, proceeds with the risk that he will inadvertently supply a deficiency in the people's case.' Thus, a defendant who presents evidence after a court has declined to grant a trial motion to dismiss made at the close of the People's case waives subsequent review of that determination. Consistent with the overall truth-seeking function of a jury trial, the rationale underlying this rule is that a reviewing court should not disturb a guilty verdict by reversing a judgment based on insufficient evidence without taking into account all of the evidence the jury considered in reaching that verdict, including proof adduced by the defense." People v Hines, 97 NY2d at 61. See also, People v Matuszek, 300 AD2d 1131, 752 NYS2d 774 (4th Dept 2002).

The Second Department has held that a detailed TOD motion at end of the prosecution's case was sufficient to preserve the issue of legal sufficiency. People v Soto, 8 AD3d 683, 779 NYS2d 251 (2d Dept 2004).

Post-verdict Motion

If the defense puts on a case, a post-verdict motion under CPL 330.30 on the basis of legal insufficiency is improper. People v Hines, 97 NY2d 56, 736 NYS2d 643 (2001).

Importance of the Motion

Part of the importance of the TOD motion is that if granted, double jeopardy bars retrial. People v Brown, 40 NY2d 381, 386 NYS2d 848 (1976). But its greater importance relates to preservation: if the defense fails to make the motion at trial, the defense does not have the right to raise the issue of legal sufficiency of the evidence on appeal. People v Gray, 86 NY2d 10, 629 NYS2d 173 (1995).

holds that unless the TOD motion is specifically directed at the alleged error, the issue is unpreserved for appeal.

Later Court of Appeals decisions suggest that the dictum in Hines – that a challenge to legal sufficiency is not "preserved for review at trial in the absence of a motion to dismiss at the close of all the evidence" – is not the law. The Court of Appeals in People v Payne, 3 NY3d 266, 273, 786 NYS2d 116 (2004) read Hines to stand for the limited proposition that, "When a trial court denies such a motion at the close of the People's case, a defendant who thereafter introduces proof waives the right to have the court consider the motion solely on the basis of the People's evidence. . . . Where, however, the court has reserved decision, the defendant has preserved a claim of insufficiency, and the trial court would then rule on the CPL 290.10 motion as if the motion were made at the close of all the evidence. We decline to expand Hines and elevate preservation to a formality that would bar an appeal even though the trial court, aware that the motion was pending, had a full opportunity to review the issue in question." People v Payne, 3 NY3d at 273.

Beyond exceptions to Hines, the concurring opinion of Judge Robert S. Smith in Payne questioned the Hines rule itself.

The Second Department reached a similar conclusion in People v Soto, 8 AD3d 683, 684-685, 779 NYS2d 251 (2d Dept 2004): "Contrary to the People's contentions, the defendant's appellate challenge to the legal sufficiency of the evidence of his intent to commit attempted murder in the second degree is preserved for review, as the defendant raised this issue with sufficient specificity in his motion . . . for a trial order of dismissal at the close of the People's case. The People's reliance upon People v Hines to support their assertion that the issue is not preserved is misplaced. Hines clearly holds that when a defendant's motion for a trial order of dismissal at the close of the People's case is denied, and the defendant thereafter presents witnesses whose testimony supplies additional evidence of guilt, the defendant waives his right to attack the quantum of proof adduced by the People during their case-in-chief. The issue is one of waiver, not preservation. The Court of Appeals in Hines clearly did not intend to announce sweeping changes in the rules of preservation applicable to legal sufficiency challenges generally. . . . We take this opportunity to reiterate our adherence to the prevailing rule that a motion pursuant to CPL 290.10 made at the close of the People's case asserting specific grounds is sufficient to preserve those arguments in a challenge to the legal sufficiency of the evidence on appeal." See also, People v Garrett, 8 AD3d 676, 677, 780 NYS2d 605 (2d Dept 2004).

Review in interest of justice

Though unpreserved, legal sufficiency may be raised on appeal in the interest of justice. People v Butler, 273 AD2d 613, 711 NYS2d 525 (3d Dept 2000).

TOD motion and effective assistance of counsel

Given the importance that appellate courts have given the motion, no conceivable reason exists why the motion should not be made in every trial. Failure to make the motion cannot be attributable to "strategy." Pavel v Hollins, 261 F3d 210, 216-217 (2d Cir 2001); People v Lindo, 167 AD2d 558, 562 NYS2d 229 (2d Dept 1990).

People v Gray
was decided more than a decade ago. Many trial lawyers, seemingly oblivious to the need to make a specific motion for a trial order of dismissal, are candidates for ineffective assistance of counsel. See Riley v Berghius, 388 F Supp 2d 789 (ED Mich 2005).


The living language is like a cow-path: it is the creation of the cows
themselves, who, having created it, follow it or depart from it according to their whims or their needs. From daily use, the path undergoes change. A cow is under no obligation to stay. E.B. White

interim probation
State.  In state court, after conviction but prior to sentencing, the judge may impose conditions on a defendant. At sentencing, the court may consider the defendant's compliance with the conditions. CPL 400.10(4); Handling a Criminal Case in NY, § 21:99.


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