Opinion
Argued February 18, 1977
Decided March 29, 1977
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ERNEST L. SIGNORELLI, J.
Charles M. Schutzman for appellant.
Henry F. O'Brien, District Attorney (Mark D. Cohen of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed. In People v Brown ( 40 N.Y.2d 381), this court interpreted recent rulings of the United States Supreme Court as precluding appeal by the People "from an adverse trial ruling whenever such appeal if resolved favorably for the People might require the defendant to stand retrial — or even if it would then be necessary for the trial court `to make supplemental findings'". Since, in this case, correction of any error committed by the trial court would lead to a second trial, as indeed the Appellate Division ordered, the taking of the appeal by the People to the Appellate Division violated the double jeopardy principles considered in Brown. Because the People were constitutionally precluded from appealing to the Appellate Division, the Appellate Division should have dismissed their appeal.
Accordingly, the order appealed from should be reversed and the case remitted to the Appellate Division, with directions that the appeal to that court be dismissed. (People v Baker, 39 N.Y.2d 923, cert den 429 U.S. 868.)
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order reversed, etc.