dissents and votes to affirm the order, with the following memorandum: In light of the double jeopardy clauses in the Fifth Amendment to the United States Constitution and section 6 of article I of the New York Constitution, it would, in my view, be an exercise in futility to expose the defendant to a second trial. Right or wrong, and there is little doubt in my mind that he acted improperly — or at least failed to spread a proper reason for dismissal of the rape charge on the record, the Trial Judge effectively closed the door to a retrial by dismissing the first count of the indictment. The majority concedes that, except for the recently decided case of United States v Scott (437 US 82); People v Brown (40 NY2d 381, cert den 429 US 975, mot for rearg den 42 NY2d 1015, cert den 433 US 913) would control and the defendant would be free of the rape count in the instant indictment. I fail to see how the rationale of the Scott case (supra) affects the situation at hand. There the defendant moved before trial in Federal District Court and twice during the trial for dismissal of two counts of a three-count indictment, on the ground that his defense had been prejudiced by preindictment delay. At the close of all the evidence the court granted his motion. The United States Court of Appeals affirmed. In reversing and remanding for a new trial, the Supreme Court stated (pp 98-99): "We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant * * * we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.” Thus, what was established in Scott is that where a defendant himself seeks to have a trial terminated without any evidence as to his guilt or innocence being presented to court or jury, an appeal by the government from his successful effort to do so does not call the double jeopardy clause into play. In such a position a defendant is not relieved of the consequences of his own choice. Two factors distinguish the instant case from Scott. First, the defendant was convicted of a lesser count of the indictment; in Scott the count that went to the jury resulted in an acquittal. Second, in Scott defendant himself made the motion to dismiss before the jury even heard a word of testimony on the dismissed counts; at bar, the Trial Judge acted on his own initiative after the jury declared itself hopelessly deadlocked on the rape count. We cannot pluck a chord of the Trial Judge’s memory to ascertain his ratiocination; nor would it avail us if we could. It is, however, a fair inference that in view of the relatively innocuous crime of endangering the welfare of a child (a class A misdemeanor) as against the enormity of the crime of rape in the first degree (a class B felony), he reasoned that the chance of convicting on the felony count was too remote for further consideration. In effect, he dismissed the count for insufficiency of the trial evidence. Inartful and imprecise as his statement was, I think his mistake should enure to the benefit of the defendant. The inference gains strength when we note that the defendant took the stand in his own defense. He admitted copulating with the female (who was just under 17 years of age) but insisted that there was no "forcible compulsion”, a necessary element of rape in the first degree as charged in the indictment (see Penal Law, § 130.35, subd 1). At most, if his defense had been credited by the jury, which deliberated for almost 12 hours, he could *986have been found guilty only of sexual misconduct (see Penal Law, § 130.20, subd 1), the successor to the crime of statutory rape in the former Penal Law, or of rape in the third degree under the current law. But neither of these latter crimes was charged in the indictment; nor is either a lesser included crime of rape in the first degree. The double jeopardy rule appears to be floundering in a morass of uncertainty. Stare decisis is more honored in the breach than in the observance, as is evidenced by the sudden overturn (by a five to four vote in United States v Scott, supra) of United States v Jenkins (420 US 358), decided unanimously over three years before at a time when it included eight of the nine members of the present Bench. In the four cases that were handed down simultaneously with Scott,1 the Supreme Court was obliged to walk a fine line. Different fact situations required different treatments. A habeas corpus proceeding in Crist v Bretz (437 US 28) furnishes a good example. Bretz and a codefendant were haled into Montana State court and were charged, inter alia, in a criminal information with obtaining money and property by false pretenses. A jury was selected and sworn. At that point and before a witness was sworn, the defendants drew the attention of the court to the allegation in the false pretenses charge that the illegal conduct at issue began on January 13,1974 and moved that the People’s evidence be limited accordingly. By that time the subject statute had been repealed. The prosecutor moved to amend to have the date read January 13, 1973. His motion was denied. After the prosecutor filed a superseding information, he moved the case for trial. The second trial was held and resulted in a conviction. The habeas corpus proceeding was then instituted. Ultimately, the Supreme Court held that Bretz was exposed to jeopardy the moment the original jury was sworn, and struck down the Montana statute that required the swearing of a witness before jeopardy attached. The tactic pursued by Bretz succeeded. Had he and his codefendant moved to dismiss the false pretenses count, they might well have rendered themselves amenable to the principle enumerated in Scott, as noted above. By forcing the prosecutor to move to dismiss the information, the habeas corpus proceeding resulted in success for the defendants as to the false pretenses count. As in the Federal cases, so in People v Key (45 NY2d 111), the court laid emphasis on the circumstance that the motion to dismiss was made by the defendant. There, in Nassau County District Court, defendant was charged with driving while intoxicated. His attorney spotted glaring defects in the simplified traffic information. Instead of moving to dismiss at the outset, he lay back at the trial, wedded in his own mind to the conclusion that the court, after the selection and swearing in of the jury, would have to dismiss the charge, thereby exposing his client, as he thought, to double jeopardy, if the People moved for a retrial. As we know, that age-old ploy was successful at the trial level, but came a cropper in the Court of Appeals. Former Chief Judge Breitel, noting that only the day before Key was handed down, the Supreme Court had decided Scott, and its four companion cases, remarked (p 119): "In other words, it appears from its latest exposition that the Supreme Court has divided trial orders of dismissal into two classes. In the first class are those that terminate the proceedings in defendant’s favor (see Lee v United States, 432 US 23, 29-31, supra). These dismissals do not permit reprosecution, In the second class, however, are those dismissals that are 'functionally indistinguishable from a declaration of mistrial’ (id., at p 31). These dismiss*987ais do not bar reprosecution, so long as the motion is made by defendant, and the error prompting the motion is not motivated by bad faith or desire to provke the motion (id., at pp 33-34)” (emphasis supplied). In a footnote Chief Judge Breitel hedged his bet, so to speak, when he stated that (pp 119-120): "The holding in People v Brown (40 NY2d 381, supra) may be correct on some views of the matter since there the defendant’s motion to dismiss was made on the basis that the People had, at the close of their case, failed to prove a prima facie case, concededly on an issue of law.” At bar, unlike the facts in Key and Scott, defendant did not make the motion; therefore, he does not come within the ambit of those cases. Harking back for a moment to the remarks of the Trial Judge as contained in the majority memorandum, it should be noted that the statement was truncated. It failed to include the final sentence, which reads: "With respect to the First Count in the Indictment, the Rape, based on what these folks just told me, the Court will dismiss that count.” In 1926, in People v Defore (242 NY 13), Judge Cardozo noted, in writing for a unanimous affirmance where a defendant had been convicted of possession of a weapon (as a second offender), that the appeal concerned itself with a motion to suppress evidence because no warrant had been sought or issued. In rejecting the argument the Judge posed a rhetorical question in declarative form (p 21): "The criminal is to go free because the constable has blundered” and answered it with a ringing negative. Until 1961 that statement retained its viability. Then, in Mapp v Ohio (367 US 643), the Supreme Court applied the exclusionary rule to the States by extension of the Fourteenth Amendment to the United States Constitution and held that indeed the criminal must go free because the constable had blundered. Substitute the "court” for the "constable” and the analogy applies. With this in mind, and recalling, too, the repetitive refrain enumerated in the cases reviewed that only where the defendant makes the motion to dismiss is he to be denied the benefit of the double jeopardy clause, it is again pointed out that Boynton does not fall within this category. The order dismissing the rape count should be affirmed.
. Burks v United States, 437 US 1; Greene v Massey, 437 US 19; Crist v Bretz, 437 US 28; and Sanabria v United States, 437 US 54.