Opinion
2005-500 S CR.
December 2, 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, held that the People failed to prove the defendant's guilt and disprove the defense of justification beyond a reasonable doubt.
Vincent J. Messina, Jr., Town Attorney, Islip ( Robert L. Cicale of counsel), for appellant.
Murray Hopkins, Hauppauge ( Mark A. Murray of counsel), for respondent.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ., concur.
OPINION OF THE COURT
MEMORANDUM.
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 posttrial motion and dismissed the case. Although the People's appeal was dismissed by this court ( People v. Schaum, 2001 NY Slip Op 40426[U] [App Term, 9th 10th Jud Dists 2001]), the Court of Appeals reversed and remitted the case to this court for further proceedings ( People v. Schaum, 98 NY2d 667). 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, NYLJ, Dec. 24, 2002, at 21, col 4 [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 NY3d 495; People v. Laing, 79 NY2d 166, 170; Matter of State of New York v. King, 36 NY2d 59, 63), and the statute conferring such right must be strictly construed ( see People v. Brummel, 136 AD2d 322, 324; see also People v. Santos, 64 NY2d 702; People v. Johnson, 103 AD2d 754). 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 AD2d 690; People v. Reap, 68 AD2d 964). 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 NY3d 495, supra; People v. Myers, 226 AD2d 557). 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 NY3d 495, supra).