§ 450.40 Appeal by people from trial order of dismissal.

1. An appeal by the people from a trial order of dismissal, as
authorized by subdivision two of section 450.20, may, as indicated by
section 290.10, be based either (a) upon the ground that the evidence
adduced at the trial was legally sufficient to support the count or
counts of the accusatory instrument dismissed by the order, or (b) upon
the ground that, though not legally sufficient, such evidence would have
been legally sufficient had the court not erroneously excluded
admissible evidence offered by the people.

2. If the appeal is based upon the ground specified in paragraph (b)
of subdivision one, and if the appellate court determines that the
evidence unsuccessfully offered by the people was improperly excluded,
and if at the trial the people made on offer of proof with respect
thereto pursuant to subdivision three of section 290.10, the appellate
court, in making its determination whether the people's evidence would
have been legally sufficient had it not been for the improper exclusion,
must treat the excluded evidentiary matter as it is summarized in the
offer of proof as evidence constituting a part of the people's case.