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This entry was published on 2014-09-22
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SECTION 290.10
Trial order of dismissal
Criminal Procedure (CPL) CHAPTER 11-A, PART 2, TITLE J, ARTICLE 290
§ 290.10 Trial order of dismissal.

1. At the conclusion of the people's case or at the conclusion of all
the evidence, the court may, except as provided in subdivision two, upon
motion of the defendant, (a) issue a "trial order of dismissal,"
dismissing any count of an indictment upon the ground that the trial
evidence is not legally sufficient to establish the offense charged
therein or any lesser included offense, or (b) reserve decision on the
motion until after the verdict has been rendered and accepted by the
court. Where the court has reserved decision and the jury thereafter
renders a verdict of guilty, the court shall proceed to determine the
motion upon such evidence as it would have been authorized to consider
upon the motion had the court not reserved decision. If the court
determines that such motion should have been granted upon the ground
specified in paragraph (a) herein, it shall enter an order both setting
aside the verdict and dismissing any count of the indictment upon such
ground. If the jury is discharged before rendition of a verdict the
court shall proceed to determine the motion as set forth in this

2. Despite the lack of legally sufficient trial evidence in support
of a count of an indictment as described in subdivision one, issuance of
a trial order of dismissal is not authorized and constitutes error when
the trial evidence would have been legally sufficient had the court not
erroneously excluded admissible evidence offered by the people.

3. When the court excludes trial evidence offered by the people under
such circumstances that the substance or content thereof does not appear
in the record, the people may, in anticipation of a possible subsequent
trial order of dismissal emanating from the allegedly improper exclusion
and erroneously issued in violation of subdivision two, and in
anticipation of a possible appeal therefrom pursuant to subdivision two
of section 450.20, place upon the record, out of the presence of the
jury, an "offer of proof" summarizing the substance or content of such
excluded evidence. Upon the subsequent issuance of a trial order of
dismissal and an appeal therefrom, such offer of proof constitutes a
part of the record on appeal and has the effect and significance
prescribed in subdivision two of section 450.40. In the absence of such
an order and an appeal therefrom, such offer of proof is not deemed a
part of the record and does not constitute such for purposes of an
ensuing appeal by the defendant from a judgment of conviction.

4. Upon issuing a trial order of dismissal which dismisses the entire
indictment, the court must immediately discharge the defendant from
custody if he is in custody of the sheriff, or, if he is at liberty on
bail, it must exonerate the bail.