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PEOPLE v. KURTZ

51 N.Y.2d 380 (1980)

The People of the State of New York, Respondent, v. James R. Kurtz, Appellant.

Court of Appeals of the State of New York.

Decided November 25, 1980.

Attorney(s) appearing for the Case

William J. McClusky for appellant.

Lee Clary, District Attorney (Donald R. Gerace of counsel), for respondent.

Chief Judge COOKE and Judges GABRIELLI and WACHTLER concur with Judge JASEN; Judge JONES dissents and votes to reverse in a separate opinion in which Judges FUCHSBERG and MEYER concur.

JASEN, J.

This appeal presents the issue whether constitutional or statutory double jeopardy provisions prohibit retrial after the trial court dismisses the accusatory instrument on the defendant's own motion for the reason that the prosecutor failed to make an adequate opening statement as required by CPL 260.30.

On March 2, 1979, the defendant was arrested...

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