PEOPLE v. SCHAUM (2005)

Appeal from an order of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), dated July 19, 2004.   The order, insofar as appealed from, as limited by the brief, held that the People failed to prove the defendant's guilt and disprove the defense of justification beyond a reasonable doubt.

Appeal unanimously dismissed.

Defendant was charged with a violation of Islip Town Code § 35-3(D) which prohibits engines from creating noise disturbances.   After a trial, the court granted one branch of defendant's post-trial motion and dismissed the case.   Although the People's appeal was dismissed by this court (People v. Schaum, 2001 N.Y. Slip Op. 40426[U], 2001 WL 1649200 [App. Term, 9th & 10th Jud. Dists.] ), the Court of Appeals reversed and remitted the case to this court for further proceedings (People v. Schaum, 98 N.Y.2d 667, 746 N.Y.S.2d 453, 774 N.E.2d 217 [2002] ).   Upon remittal, this court reversed the order appealed from and remitted the matter to the District Court for a determination of the remaining branches of defendant's dismissal motion and, if necessary, a determination as to whether the People established defendant's guilt and disproved the defense of justification beyond a reasonable doubt (People v. Schaum, N.Y.L.J., Dec. 24, 2002 [App. Term, 9th & 10th Jud. Dists.] ).   While the case was winding its way through the appellate process, the trial judge was elected to the Supreme Court.   Upon remittal, the case was assigned to a different District Court Judge who denied defendant's motion to dismiss and found that the People failed to establish defendant's guilt and disprove the defense of justification beyond a reasonable doubt.

 The right of the People to appeal in a criminal case is statutorily determined (see People v. Dunn, 4 N.Y.3d 495, 796 N.Y.S.2d 331, 829 N.E.2d 295 [2005];  People v. Laing, 79 N.Y.2d 166, 170, 581 N.Y.S.2d 149, 589 N.E.2d 372 [1992];  Matter of State of New York v. King, 36 N.Y.2d 59, 63, 364 N.Y.S.2d 879, 324 N.E.2d 351 [1975] ), and the statute conferring such right must be strictly construed (see People v. Brummel, 136 A.D.2d 322, 324, 526 N.Y.S.2d 823 [1988];  see also People v. Santos, 64 N.Y.2d 702, 485 N.Y.S.2d 524, 474 N.E.2d 1192 [1984];  People v. Johnson, 103 A.D.2d 754, 477 N.Y.S.2d 225 [1984] ).   Absent a specific statute granting the People the right to appeal, this Court is without jurisdiction to hear the appeal (see People v. Doe, 170 A.D.2d 690, 567 N.Y.S.2d 104 [1991];  People v. Reap, 68 A.D.2d 964, 414 N.Y.S.2d 775 [1979] ).   Because CPL 450.20, which sets forth the instances when the People may appeal to an intermediate appellate court, does not authorize an appeal from an order acquitting a defendant, this appeal must be dismissed (see People v. Dunn, 4 N.Y.3d 495, 796 N.Y.S.2d 331, 829 N.E.2d 295, supra;  People v. Myers, 226 A.D.2d 557, 641 N.Y.S.2d 333 [1996] ).   We note that a direct appeal is not the proper method for a challenge to the authority of the judge who issued the order of dismissal (People v. Dunn, 4 N.Y.3d 495, 796 N.Y.S.2d 331, 829 N.E.2d 295, supra ).