People v. Gehlberd

272 A.D.2d 914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1947
• Status: Published

Opinion

Defendant was charged in an information with the unlawful practice of dentistry. He was tried on the 29th day of January, 1947, and at the close of the People’s case defendant moved to dismiss “ * * * on the ground that the people have failed to make out a prima facie case.” The court stated, “ Motion is granted. The defendant is acquitted.” Thereafter, and on February 27, 1947, the court made an order to the effect that a motion of defendant to dismiss the information be granted on the ground that the facts stated in the information do not constitute a crime. The People appeal, in one notice, both from the order of February 27, 1947, and the acquittal on the 29th day of January, 1947. The appeals are dismissed. Defendant was charged, tried and acquitted and he cannot.be retried. (People v. Goldfarb, 152 App. Div. 870, affd. 213 N. Y. 664; People ex rel. Meyer V. Warden, 269 N. Y. 426.) Thereafter, there was no longer any “stage of the action” (see Code Grim. Pro., § 518, subd. 3) during which the court could make the order which it did on the 27th day of February, 1947. That order is a nullity. Hagarty, Acting P. J., Carswell, Adel, Nolan and Sneed, JJ., concur.