§ 290.10 Trial order of dismissal.\n 1. At the conclusion of the people's case or at the conclusion of all\nthe evidence, the court may, except as provided in subdivision two, upon\nmotion of the defendant, (a) issue a "trial order of dismissal,"\ndismissing any count of an indictment upon the ground that the trial\nevidence is not legally sufficient to establish the offense charged\ntherein or any lesser included offense, or (b) reserve decision on the\nmotion until after the verdict has been rendered and accepted by the\ncourt. Where the court has reserved decision and the jury thereafter\nrenders a verdict of guilty, the court shall proceed to determine the\nmotion upon such evidence as it would have been authorized to consider\nupon the motion had the court not reserved decision. If the court\ndetermines that such motion should have been granted upon the ground\nspecified in paragraph (a) herein, it shall enter an order both setting\naside the verdict and dismissing any count of the indictment upon such\nground. If the jury is discharged before rendition of a verdict the\ncourt shall proceed to determine the motion as set forth in this\nparagraph.\n 2. Despite the lack of legally sufficient trial evidence in support\nof a count of an indictment as described in subdivision one, issuance of\na trial order of dismissal is not authorized and constitutes error when\nthe trial evidence would have been legally sufficient had the court not\nerroneously excluded admissible evidence offered by the people.\n 3. When the court excludes trial evidence offered by the people under\nsuch circumstances that the substance or content thereof does not appear\nin the record, the people may, in anticipation of a possible subsequent\ntrial order of dismissal emanating from the allegedly improper exclusion\nand erroneously issued in violation of subdivision two, and in\nanticipation of a possible appeal therefrom pursuant to subdivision two\nof section 450.20, place upon the record, out of the presence of the\njury, an "offer of proof" summarizing the substance or content of such\nexcluded evidence. Upon the subsequent issuance of a trial order of\ndismissal and an appeal therefrom, such offer of proof constitutes a\npart of the record on appeal and has the effect and significance\nprescribed in subdivision two of section 450.40. In the absence of such\nan order and an appeal therefrom, such offer of proof is not deemed a\npart of the record and does not constitute such for purposes of an\nensuing appeal by the defendant from a judgment of conviction.\n 4. Upon issuing a trial order of dismissal which dismisses the entire\nindictment, the court must immediately discharge the defendant from\ncustody if he is in custody of the sheriff, or, if he is at liberty on\nbail, it must exonerate the bail.\n
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