I dissent and vote to dismiss the appeal.
The facts are not complex. The trial commenced, a jury was selected and sworn, and a witness for the People testified under oath. Upon objection by the defendant that the testimony of the witness would disclose a confidential communication, the trial court held an extended hearing out of the jury’s presence but as a part of the trial. At the close of that hearing, the trial court excluded the testimony concerning the confession or admission. Even though this testimony was barred, the prosecution proceeded with its case and called a further witness, the Medical Examiner of Westchester County, who testified as to the cause of death and the intoxication of the decedent.
When the People rested, the defendant moved for a trial order of dismissal, which order was granted upon the ground that the evidence did not connect the defendant with the crime.
There is no dispute that this trial proceeded sufficiently so that jeopardy attached. The question remaining is, was the trial left in such a posture that a retrial would place the defendant in double jeopardy? The Constitutions of the United States and the State of New York specifically provide that no *334person shall "be subject for the same offence to be twice put in jeopardy of life or limb”. This is precisely what will occur in this case.
I rest my dissent upon the law as pronounced in two recent cases decided by the United States Supreme Court, United States v Wilson (420 US 332) and United States v Jenkins (420 US 358), which are also referred to in the majority opinion.
Together, these cases clearly hold that if a new trial is required, so that a defendant must again, in a new court, have to meet the People’s accusatory evidence, he will thereby be placed in double jeopardy. In Wilson, where the Trial Judge, after a full trial and a verdict of guilty by the jury, set the verdict aside, the Supreme Court sustained the appeal of the Government because only the Trial Judge’s ruling had to be reversed; no new trial was involved. However, in Jenkins, where evidence had to be taken again, the appeal was dismissed because a retrial would have violated the Constitution. The Jenkins court noted (pp 369-370): "Here there was a judgment discharging the defendant, although we cannot say with assurance whether it was, or was not, a resolution of the factual issues against the Government. But it is enough for purposes of the Double Jeopardy Clause * * * that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings. The trial, which could have resulted in a judgment of conviction, has long since terminated in respondent’s favor. To subject him to any further such proceedings at this stage would violate the Double Jeopardy Clause ” (emphasis added).
The facts of Jenkins are not dissimilar to those of the case at bar. In fact, it is certain herein, although ambiguous in Jenkins, that this judgment was a determination grounded upon the People’s proof. For here, a trial which could have resulted in a conviction has "terminated in respondent’s favor” and any retrial would place defendant in jeopardy a second time. With the possible exception of People v Sabella (35 NY2d 158), as cited by the majority, there are no cases which permit a retrial of an indictment after the initial trial resulted in defendant’s favor upon a determination based upon the evidence presented. (See, e.g., Note, Double Jeopardy: Discretion of a Trial Judge to Declare a Mistrial on the *335Basis of a Hung Jury, 44 Fordham L Rev 389.) I am also supported in my position by the First and Fourth Departments, which have recently held that a trial order of dismissal, on facts such as those presented here, is not appealable (see People v Brown, 48 AD2d 95; People v Gesegnet, 47 AD2d 333).
There was involved here only a question of the admissibility of evidence, which does not present an exception to the double jeopardy rules. This was not a trial which was aborted for "manifest necessity”. It was a full trial, with full opportunity to the People to put in its case. It failed to establish defendant’s guilt beyond a reasonable doubt; the dismissal for such reason is the equivalent of an acquittal.
I simply note in conclusion that, although the trial court may have erred in its ruling regarding the admissibility of the confession, this error cannot affect the constitutional protection. The proscription against multiple prosecutions is rigorous, with very limited exceptions not applicable here. To review determinations of a court after a criminal prosecution has resulted in defendant’s favor is to judicially emasculate a constitutional protection which, of course, is impermissible.
Rabin, Acting P. J., Martuscello and Cohalan, JJ., concur with Shapiro, J.; Christ, J., dissents and votes to dismiss the appeal, with an opinion.
Trial order of dismissal of the County Court, Westchester County, rendered June 18, 1974, reversed, on the law, and new trial ordered.