ability to appeal. Id. at 509, 40 P.3d at 911. The supreme court held that the trial court’s sua sponte dismissal order was not an acquittal because the trial court “did not rule on the merits of the case” and “did not enter any decisions as to the guilt of Poohina.” Id. at 510, 40 P.3d at 912. Accordingly, the protection against double jeopardy did not apply to the dismissal order. Id. at 509-10, 40 P.3d at 911-12. Consistent with Poohina, we conclude that the District Court’s dismissal of the charges in Clemente’s case was not an acquittal, and, accordingly, the protection against double jeopardy does not apply. The District Court’s dismissal of the charges did not satisfy the Poohina test for an acquittal. It was not based on a resolution in Clem-ente’s fav 624, 626-28 (1985) (<HOLDING>); People v. Zagarino, 74 A.D.2d 115, 427
holding that a sua sponte dismissal of the charges during trial was not an acquittal that barred retrial based on double jeopardy holding that the dismissal of criminal charges for evidentiary insufficiency is an acquittal for purposes of the double jeopardy clause holding that if defendant moved for or consented to mistrial retrial of defendant was not barred on double jeopardy grounds holding that the trial courts dismissal of the charges after jeopardy had attached based on the prosecution witnesses failure to appear was not an acquittal and therefore double jeopardy did not prevent the court from reconsidering its decision and reinstating the charges holding double jeopardy prohibits government appeal and retrial following valid judgment of acquittal entered by trial court after jury deadlocked on criminal contempt charge