N.Y. Criminal Procedure Law § 290.10: Trial order of dismissal

§ 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

paragraph.

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.