
    In the Matter of Alan G. Kraemer et al., Respondents, against County Court of Suffolk County et al., Appellants.
    Argued May 13, 1959;
    decided July 8, 1959.
    
      
      John P. Cohalan, Jr., District Attorney (Harold Ashare of counsel), for appellants.
    I. The appeals were properly taken by the People to the County Court. (People v. Gehlberd, 272 App. Div. 914; People v. Levenstein, 309 N. Y. 433; People ex rel. Hirschberg v. Orange County Court, 271 N. Y. 151; People v. Craig, 295 N. Y. 116.) II. The Appellate Division erroneously assumed jurisdiction of these appeals by entertaining the order of prohibition application. (People v. Hattemer, 3 N Y 2d 1013; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; Matter of Hogan v. Court of General Sessions of County of N. Y., 296 N. Y. 1; Reed v. Littleton, 275 N. Y. 150; Matter of Harris Motors v. Klapp, 296 N. Y. 242; Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; Appo v. People, 20 N. Y. 531; People ex rel. Jerome v. General Sessions, 185 N. Y. 504.)
    
      Alan G. Kraemer, respondent in person and for Edmund F. Foley and others, respondents.
    I. Respondents were adjudged not guilty after trial and discharged and, therefore, the People have no right to appeal. (People v. Kraemer, 7 Misc 2d 373; People v. Reed, 276 N. Y. 5; People v. Tollman, 193 Misc. 563; People v. Gehlberd, 272 App. Div. 914; Reed v. Littleton, 275 N. Y. 150; People ex rel. Meyer v. Warden, 269 N. Y. 426.) II. The restraining order entered by the Appellate Division was a proper exercise of the court’s judicial discretion. (Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; Appo v. People, 20 N. Y. 531; People ex rel. Jerome v. General Sessions, 185 N. Y. 504; Matter of Hogan v. Court of General Sessions of County of N. Y., 296 N. Y. 1.) III. The waters in Lloyd Point Basin are public navigable waters and may be used by the public for pleasure boating. (Lewis Blue Point Oyster Co. v. Briggs, 58 Misc. 55,129 App. Div. 574, 198 N. Y. 287, 229 U. S. 82; People v. Vanderbilt, 26 N. Y. 287; Scranton v. Wheeler, 179 U. S. 141; The Daniel Ball, 10 Wall. [77 U. S.] 557; Attorney General v. Woods, 108 Mass. 436; United States v. Appalachian 
      
      Power Co., 311 U. S. 377; People v. System Props., 281 App. Div. 433; Anderson v. Reames, 204 Ark. 216; Lamprey v. State, 52 Minn. 181; Silver Springs Paradise Co. v. Ray, 50 F. 2d 356.)
   Yah Voobhis, J.

The underlying controversy is a criminal prosecution for trespass in violation of a local ordinance. Dropping anchors from boats to catch upon the bottom of a small estuary of Long Island Sound, known as Lloyd Point Basin, is claimed to have violated the property rights of a lessee of the land under water. The persons involved in this appeal were tried in Police Court in the Village of Lloyd Harbor and acquitted. (People v. Kraemer, 7 Misc 2d 373.) The People appealed to the Suffolk County Court, which entertained jurisdiction to hear the appeals by denying motions to dismiss them. (People v. Kraemer, 14 Misc 2d 42.) This proceeding, in the nature of prohibition under article 78 of the Civil Practice Act, was then instituted by the defendants in the criminal prosecutions on the theory that they could not twice be placed in jeopardy for the same offense. The Suffolk County Court has been restrained by this prohibition order from exceeding its jurisdiction by hearing those appeals.

Prohibition is the traditional remedy designed for this kind of situation 9Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1, 7; Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; People ex rel. Jerome v. Court of Gen. Sessions, 185 N. Y. 504). If, as the Appellate Division has held, what happened in Police Court amounted to a trial and acquittal for the reason that it developed on the trial that this is navigable water, then the successful defendants in the criminal trial are not subject to harassment by being obliged to prepare and argue appeals on the merits in order to obtain a determination that the Suffolk County Court lacks the jurisdiction which it has refused to renounce.

The return of the Police Justice to the County Court certified that these defendants (petitioners-respondents here) had been tried in Police Court and found not guilty. This was afterwards changed at the instance of the District Attorney, so as to state that the charges of trespass had been dismissed on the law. The amended return does not state that the informations were dismissed as insufficient in law. Regardless of whether the Police Justice could change his return, an examination of Ms opinion (7 Misc 2d 373) discloses that the dismissals were not based on insufficiency of the informations, but on the ground that the criminal charges had not been proved as matter of law. It developed on that trial that petitioners-respondents dropped anchor in navigable water. The informations were not insufficient in themselves. They do not allege or concede that this is navigable water. Even upon the argument in this court, the District Attorney refused to admit that Lloyd Point Basin is navigable. The People are not entitled to appeal for the reason that it developed upon the trial in Police Court that this area of water is navigable. Neither are the People entitled to appeal because there is no conflict in the evidence about its navigability. If it develops on a criminal trial that the facts are incontestably in favor of a defendant, with the consequence that on the evidence the Trial Judge has to dismiss the charge on the law, there is less reason for allowing the prosecution to appeal than though there were a conflict in the testimony.

Subdivision 3 of section 518 of the Code of Criminal Procedure permits an appeal by the People from an order setting aside or dismissing an indictment (or information) “on a ground other than the insufficiency of the evidence adduced at the trial ’ ’. Subdivision 5 disallows an appeal by the People “where a verdict of not guilty has been rendered.” This is not a case of the dismissal of these informations in police court as themselves insufficient in law. The charges were dismissed after trial, on the basis of facts adduced by the evidence or of which judicial notice was taken, which are held, as matter of law, to fall short of establishing the crime charged. To allow the County Court to assume jurisdiction of these appeals would be equivalent to allowing the People to appeal in any criminal action where a defendant has been discharged after trial by dismissal of the indictment or information at the close of the evidence, upon the ground that the prosecution has failed to prove a case.

The language quoted from subdivision 3 of section 518 of the Code of Criminal Procedure was adopted by chapter 832 of the Laws of 1942, upon recommendation of the Judicial Council, in order to correct a deficiency in that section which was highlighted by this court’s decision in 1937 in People v. Reed (276 N. Y. 5). In the Reed case, the court held that, under the then existing statutory provisions, the People could not appeal from an order made during the trial, dismissing an indictment on the ground that it failed on its face to charge a crime, even though the trial court’s ruling on the sufficiency of the indictment would have been appealable if it had been made on demurrer before trial or on motion in arrest of judgment after verdict.

In recommending the foregoing amendment to subdivision 3 of section 518, the Judicial Council emphasized that its purpose was to extend the People’s right of appeal to an order sustaining “ objections to the sufficiency of the indictment [raised] by a motion to dismiss ”, whether the motion was made “ before or after a jury had been called and whether before or after any testimony had been taken.” (See Fifth Annual Report of N. Y. Judicial Council, 1939, p. 41; Eighth Annual Report of N. Y. Judicial Council, 1942, p. 63.)

The amended subdivision 3, indeed, specifies that to be appealable the order dismissing the indictment must have been made ‘ on a ground other than the insufficiency of the evidence adduced at the trial ”; and the Judicial Council itself emphasized that the amendment ‘ ‘ would not allow an appeal from an order dismissing an indictment for reasons connected with the weight or sufficiency of the evidence”. (See Eighth Annual Report, op. cit., p. 62.)

It seems clear that the informations in the present case were not dismissed on the ground that they were legally insufficient on their face. The informations, charging trespass upon privately owned land under water, were undoubtedly sufficient on their face. The dismissal was based on the facts developed at the trial, which were reviewed in the Trial Judge’s lengthy opinion (7 Misc 2d 373), and which showed that the harbor in question, though man-made, was a navigable waterway (7 Misc 2d 380), and had been continuously utilized by various craft for a period of over 30 years (7 Misc 2d 377-378).

In short, although the informations were sufficient on their face, the Trial Judge, nevertheless, dismissed the charges as a matter of law on the basis of the evidence with respect to the navigable nature of the waterway and his views as to the public’s right of navigation over such a waterway. Since the dismissal was thus based on ‘ ‘ the insufficiency of the evidence adduced at the trial” to warrant conviction of trespass, as distinguished from any question as to the legal sufficiency of the informations as pleadings, appeal therefrom is excluded by the very terms of subdivision 3 of section 518.

The Judicial Council noted that there was a possible question of double jeopardy, even as regards the limited amendment recommended by it. (See Fifth Annual Report, op. cit., p. 41.) A much more serious question of double jeopardy would be presented if the amendment were interpreted to give the People a right of appeal from a dismissal, as in this case, ‘1 for reasons connected with the weight or sufficiency of the evidence ”.

The final order appealed from should be affirmed, without costs.

Froessel, J. (dissenting).

The petitioners herein were charged with trespass in dropping anchor, from their respective boats, upon private land under water, without the authority of the owner thereof, in violation of an ordinance of the Village of Lloyd Harbor. There is no dispute as to the facts. At the close of the People’s case, during a consolidated trial, petitioners’ attorney moved to dismiss the informations on the ground “ that navigable waters, no matter who owns the ground under the water, can be used by the public in their boats for anchoring ”. In doing so, petitioners in effect conceded the facts stated in the informations, but contended such facts constituted no violation as a matter of law. The court reserved decision.

Taking judicial notice (see n. 7 Misc 2d 373, 377) that the waters in question were navigable, based upon publications of the United States Coast and Geodetic Survey, the court dismissed the charges after trial, upon the law. It concluded (p. 384) “that when the owners of the harbor area caused their lands to be submerged by navigable waters, the public right of navigation, including as an incident thereto the right to anchor, immediately extended to the area”—the very basis of petitioners’ motion to dismiss. Its opinion (see 7 Misc 2d 373) was summarized in the original and amended returns as well as incorporated therein by reference. The inadvertent use of the words “ not guilty ” in the original return cannot override the true nature of the dismissal as clearly revealed in the record before us.

After appeal to the County Court, petitioners instituted this article 78 proceeding in the nature of prohibition, and were successful in the Appellate Division. We disagree with the conclusion of that court that the People had no statutory right of appeal.

That was the law at the time of our decision in People v. Reed (276 N. Y. 5) and when People v. Merrill (156 Misc. 637) was decided. In People v. Reed, where the motion to dismiss the indictment on the law was made, as here, at the end of the People’s case, and granted at the end of the whole case, Chief Judge Cbaíte pointed out (p. 9) that, while “ the defendant under our criminal procedure is entitled to the benefit of every reasonable doubt on the facts, the People should be entitled to any reasonable doubt a trial judge may have upon the law for, if he makes a mistake on the law, the People have no opportunity or method of reviewing his ruling, as strange as it may seem to us in this enlightened day”, adding (p. 14): 1 ‘ Until the Legislature has seen fit to make the rights of the People on appeal more explicit and certain we must adhere to the practice as it has been, and rule that none of these provisions of sections 518 or 519 give to the People the right to appeal from the dismissal of the indictment in this case.”

To overcome the effect of our decision, and upon renewed recommendations of the Judicial Council, the Legislature by chapter 832 of the Laws of 1942 enacted present subdivision 3 of section 518 of the Code of Criminal Procedure, as evidenced by “ Note of Commission” to this section (McKinney’s Cons. Laws of N. Y., Book 66, Part 2, p. 382), which states: “ Note of Commission.— Amendments by L. 1942, c. 832, affecting this section and section 519 were recommended by the Judicial Council. ‘ It changes the statutory right to appeal as interpreted by People v. Reed, 276 N. Y. 5 (1937) and would permit the people to appeal from a dismissal of an indictment granted as a matter of law if the order were made during the trial just as is now permitted when such an order is granted upon a demurrer to the indictment or upon a motion in arrest of judgment, etc. It would not allow an appeal from an order dismissing an indictment for reasons connected with the weight or sufficiency of the evidence. See Eighth Annual Report of the Judicial Council, p. 62; also Sixth Annual Report, p. 55; also Seventh Annual Report, p. 56.’ See also Fourth Annual Report, p. 60; Fifth Annual Report, pp. 40-41.”

Subdivision 3 of section 518 (made applicable to appeals from Courts of Special Sessions by Code Crim. Pro., § 750) provides that the People may appeal “ From an order of the court, made at any stage of the action, setting aside or dismissing the indictment on a ground other than the insufficiency of the evidence adduced at the trial ”. (Emphasis supplied.) The language is unambiguous, concise and sweeping. The legislative intent is clear. In this case we have an order of the Police Justice sitting as a Court of Special Sessions made m the course of the action — the stage is not determinative—following a motion to dismiss made at the end of the People’s case. The informations were dismissed “ on a ground other than the insufficiency of the evidence adduced at the trial ”, namely, on the law, the facts being undisputed. When the Legislature spoke of the dismissal of an indictment “ on a ground other than the insufficiency of the evidence adduced at the trial ”, we must assume it meant precisely what it said, and particularly so since its manifest purpose was to carry out our suggestion in the Reed case (supra).

Therefore, inasmuch as the dismissal was on the law alone, the People had the right to appeal therefrom. Whether or not the trial court’s determination of the legal question ruled upon is correct is not at present relevant. The People are entitled to have that question reviewed by the County Court (Code Crim. Pro., § 749) and, on further appropriate appeal, by our court. No appeal could be taken to the Appellate Division in any event. It is clear that the County Court to which this appeal was taken had the power to decide whether said appeal was properly before it under subdivision 3 of section 518, just as all appellate courts, including our own, have the power to determine whether or not appeals are properly taken. Appellate courts exercise that power every day. If the County Court decided that question erroneously, the remedy of appeal to our court was provided. Under these circumstances, the extraordinary remedy of prohibition was not available.

The order appealed from should be reversed, and the proceeding dismissed, without costs.

Judges Desmond, Dye and Fuld concur with Judge Van Voorhis; Judge Froessel dissents in an opinion in which Chief Judge Conway and Judge Burke concur.

Order affirmed.  