People v. Weitzman , 550 N.Y.S.2d 470 ( 1990 )

Mikoll, J.

Appeal from an order of the County Court of St. Lawrence County (Nicandri, J.), entered March 29, 1989, which granted defendant’s motion to dismiss the indictment.

The discrete issue presented here is whether County Court’s entry of a trial order of dismissal and dismissal of the indictment charging defendant with operating a motor vehicle with .10% or more of alcohol in the blood in violation of Vehicle and Traffic Law § 1192 (2) foreclosed the People’s right to appeal. We hold that the People cannot appeal (see, CPL 290.10 [1] [a]).

The same issue was addressed by this court in People v Harding (101 AD2d 221) on facts substantially similar to those in the present action. We there held that: "unless a trial court reserves decision on a motion for a trial order of dismissal based on insufficient legal evidence made pursuant to CPL 290.10 (subd 1, par [a]) and conforms with the requirements of paragraph (b) thereof, an appeal from the order of dismissal is unavailable to the People” (supra, at 222).

In the present action, County Court never submitted the case to the jury and, thus, no verdict was reached. Accordingly, the trial order of dismissal was granted pursuant to CPL 290.10 (1) (a). This statute clearly governs the instant case. The People’s attempt to invoke other provisions of the CPL or to rely on County Court’s mistaken opinion that the trial order of dismissal would preserve the People’s right to appeal must also fail.

Appeal dismissed. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Levine, JJ., concur.