Malden, MA asked in Appeals / Appellate Law and Criminal Law for New York

Q: The prosecutor on my case from 11/30/2022 appealed the judges dismissal with prejudice. Didn't I have to be notified?

It was dismissed because the accusatory instrument was in error. She won the appeal, mind you this is on a city court level. I feel this is harassment and violating my civil rights. Wasn't the dismissal the law? How can she win an appeal on factual law??

1 Lawyer Answer
Charles Holster
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  • Criminal Law Lawyer
  • Garden City, NY
  • Licensed in New York

A: Yes, you had to be notified. The prosecution had to send your attorney a copy of its a motion. So, check if your attorney received it or not. If he did, he should have informed you. If your attorney did not receive a copy of the prosecution's motion, then the appeal may have been defective. If it was defective, then the appeal could get dismissed.

This was not harassment or a violation of your civil rights. When you won in the lower Court, you did not win "on factual law." Your case was dismissed because the lower decided that the accusatory instrument was "legally insufficient." That was not based upon a factual determination of what you did or did not do. Nor did it mean that you were found to be "not guilty."

In order for an accusatory instrument to be legally sufficient, the "accusatory" part must state each of the elements (or parts) of the specific crime that you are being charged with, and the "factual" part must state what you did which allegedly satisfied each of the elements of that crime. The dismissal by the lower court is " the law" in you case, but it could be overturned by the appellate court if it decides that the accusatory instrument was NOT "legally insufficient." When it was overturned in your case, it meant that your case will continue until you have a trial, and the jury decides whether you are guilty or not guilty. It is the jury which decides the facts, i.e., whether you did what you are being accused of doing. If you are acquitted by the jury, which means that you are found "not guilty," the prosecution cannot appeal that verdict. That would be "double jeopardy," which the law prohibits.

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