The instant appeal is reviewable by this court pursuant to subdivision 1 of CPL 450.20, which authorizes appeals from orders of dismissal entered pursuant to CPL 210.20. When Criminal Term dismissed the indictment in question, it acted within the scope of paragraph (h) of subdivision 1 of CPL 210.20. This court is, therefore, empowered to pass upon the merits of Criminal Term’s action.
The respondent was indicted for the crime of grand larceny in the second degree (two counts). After the prosecution delivered its opening address, which included a reading of the indictment and a short statement of the evidence to be presented, and after the respondent waived all double jeopardy protections, the motion to dismiss was granted because of the failure of the prosecution to set forth a prima facie case. The instant appeal followed.
At the outset I wish to make it clear that Criminal Term was in error when it acted as it did. The opening was clearly sufficient. In substance, the opening informed the jury that the prosecutor intended to establish that the respondent had used a "scheme” to induce his victim to put up money for bonds which were never delivered, and to return certain notes which were meant to guarantee the delivery of the bonds. When one combines the reading of the indictment, which speaks in terms of a wrongful taking of currency and property, with the opening statement, it becomes clear that a larcenous intent was alleged. An opening statement is meant *195to acquaint the jury and the defendant, in a general way, with the crime charged and to give a broad outline of the case for the prosecution. The opening statement here set out a prima facie case and served its informative function. The dismissal of . the indictment was therefore improper. I also note that Criminal Term’s refusal to allow the prosecution to give a further opening statement served no purposeful function whatsoever.
This court does not have the authority to correct Criminal Term’s error and reinstate the indictment unless the order appealed from is reviewable under a specific provision of the CPL. CPL 210.20 provides, in part:
"1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that * * *
"(h) There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged”. Criminal Term acted within the scope of paragraph (h). It was convinced that a "legal impediment” existed because the prosecution had failed to meet the requirement of subdivision 3 of CPL 260.30, which mandates that "[t]he people must deliver an opening address to the jury” (emphasis supplied).
Criminal Term determined that the prosecution had failed to comply with this command because the opening address failed to set forth a prima facie case. The mandate of subdivision 3 of CPL 260.30 is not waivable (People v Levine, 297 NY 144) and, even if the respondent’s guilt of the crime of grand larceny had been established beyond a reasonable doubt by the evidence introduced at the trial, the conviction would have been rendered valueless if the prosecutor had failed to satisfy the dictates of subdivision 3 of CPL 260.30 (see People v Levine, supra; cf. People v Klein, 7 NY2d 264). The conviction would inevitably have been reversed on appeal because the failure of the prosecution to properly open would have presented an insurmountable legal impediment to the conviction. Criminal Term therefore acted within the authority of paragraph (h) of subdivision 1 of CPL 210.20, and the order is appealable pursuant to subdivision 1 of CPL 450.20.
My learned brethren in the majority place great reliance upon the argument that the failure to adequately open is not a "legal impediment” because, under subdivision 4 of CPL 210.20, a dismissal based upon such a "legal impediment” bars a resubmission of the charge to the Grand Jury. They reason that the Legislature could not have intended to provide so *196drastic a consequence as the result of such a simple error of omission as the failure to properly open.
This argument is founded upon the position that a failure to adequately open is of minimal importance. With this I am unable to agree. The prosecution’s obligation to open is mandatory and cannot be waived by either side. Even if enough evidence is presented at a trial to support a conviction, the verdict will fall when the requirement of subdivision 3 of CPL 260.30 is not satisfied. A defendant’s failure to raise an objection at the trial to the prosecution’s failure to open does not waive this defect. The court in People v Levine (297 NY 144, 147, supra) quoted with approval the following language of People v Bradner (107 NY 1, 4-5): "If the record discloses upon its face that the court had no jurisdiction, or that the constitutional method of trial by jury was disregarded (Cancemi’s Case, 18 N. Y. 128), or some other defect in the proceedings, which could not be waived or cured and is fundamental, it would, as we conceive, be the duty of an appellate tribunal to reverse the proceedings and conviction, although the question had not been formally raised in the court below, and was not presented by any ruling or exception on the trial” (emphasis supplied). Clearly, the failure to properly open is not an error to be easily overlooked.
It is also a serious error to read any significance into subdivision 4 of CPL 210.20, which bars a resubmission to the Grand Jury of an indictment dismissed pursuant to paragraph (h) of subdivision 1 of CPL 210.20, because what is before the court here is not an attack upon the sufficiency of the indictment, but an attack upon the adequacy of the opening statement to the jury. Resubmission has nothing to do with the question of the adequacy of an opening statement because it could not cure an inadequate opening. If the prosecutor’s opening were inadequate because the evidence presented to the Grand Jury had been insufficient, the respondent’s remedy would have been to make a motion to dismiss pursuant to paragraph (b) of subdivision 1 of CPL 210.20 and, in such an instance, resubmission is expressly provided for in subdivision 4 of CPL 210.20. The record indicates that, in fact, a motion to dismiss pursuant to paragraph (b) had been made and denied.
The majority finds it incredible that a failure to open bars resubmission to a Grand Jury. I find even more incredible the premise that a defendant charged with a felony can be saved from prosecution by an erroneous determination that there *197had been a failure to properly open simply because the Legislature has failed to provide an avenue of review for such a determination. It is also worthy of note that the respondent obtained a favorable ruling on his motion solely because he . voluntarily waived his double jeopardy protection (cf. People v La Ruffa, 37 NY2d 58). There is therefore no bar to a reinstatement of the indictment.
One of the purposes of an opening statement is to allow a defendant to make a motion "to dismiss the charge for insufficiency to constitute a crime” (see People v Guest, 53 AD2d 892, 894, dissenting memorandum of Hopkins, J.). The majority is, in effect, negating this important right by stating that all doubts as to sufficiency should be resolved against the defendant. Certainly, any prosecutor worthy of the title will at least make a vague reference to a crime in his opening. It is better procedure to allow a defendant to challenge an opening before he is subjected to a potentially arduous and traumatic trial, than it is to be in the position of reversing an otherwise proper conviction solely because of a deficiency in the opening. Paragraph (h) of subdivision 1 of CPL 210.20 and subdivision 1 of CPL 450.20 provide the avenue for reviewing the adequacy of an opening at the outset of a trial. I therefore respectfully dissent and vote to reverse the order and reinstate the indictment.
Rabin, Acting P.J., and Titone, J., concur with Shapiro, J.; O’Connor, J., dissents and votes to reverse the order and reinstate the indictment, with an opinion.
Appeal by the People from an order of the Supreme Court, Kings County, dated August 17, 1976, dismissed.