Opinion
April 12, 1982
Appeal from the Erie County Family Court, Honan, J.
Present — Dillon, P.J., Simons, Doerr, Moule and Schnepp, JJ.
Order unanimously reversed and petition dismissed. Memorandum: During a juvenile delinquency fact-finding hearing to determine whether respondent committed acts which constitute burglary and grand larceny, the court sustained an objection to testimony concerning certain admissions made by respondent to petitioner. Petitioner then rested his case and on respondent's motion an order was entered pursuant to section 751 FCT of the Family Court Act dismissing the delinquency petition on the ground that its allegations had not been established. Shortly thereafter, petitioner convinced the court that it had erred in excluding the evidence and permission was granted to reopen the hearing to permit its receipt. At the conclusion of the reopened hearing the court found that the evidence was sufficient to establish respondent's culpability and that he was a juvenile delinquent (Family Ct Act, § 752). We agree with respondent that he was placed in jeopardy twice when the fact-finding hearing was reopened to receive the excluded evidence after an order of dismissal had been entered. A dismissal pursuant to section 751 is on the ground of legal insufficiency, is the equivalent of a "`trial order of dismissal,'" under CPL 290.10 (subd 1) ( Matter of Roger W., 61 A.D.2d 884), constitutes a resolution of the case in the respondent's favor on the merits of the charge (see United States v Scott, 437 U.S. 82; Lee v United States, 432 U.S. 23), and bars retrial (see People v Key, 45 N.Y.2d 111). It is irrelevant that the dismissal was the result of an erroneous midtrial ruling which excluded certain evidence of guilt (see Sanabria v United States, 437 U.S. 54; Fong Foo v United States, 369 U.S. 141). Double jeopardy prohibits the reopening of a fact-finding hearing to hear additional evidence after the hearing has been terminated in the respondent's favor (see People v Warren, 80 A.D.2d 905; cf. Matter of Antonio F. v Judges of Family Ct. of County of Kings, 35 A.D.2d 527, affd 27 N.Y.2d 915).