New York Criminal Lawyer Blog
The Facts:
Stemming from a grand larceny case where defendants were convicted, at an Extraordinary Special and Trial Term of the Supreme Court, of conspiracy in the fourth degree, hindering prosecution in the third degree and official misconduct, the Appellate Division, on appeal, found that the evidence was legally insufficient, unanimously reversed, expressly stating it did so on the law and the facts, and dismissed the indictment.
The people now appeal from the said judgment.
A New York Criminal Lawyer said the defendants move to dismiss the appeal on the ground that the court lacks jurisdiction to entertain it. The court, in refusing to dismiss, said that, although the reversals are not appealable, the issue of the illegality of the Corrective action is nonetheless itself an appealable issue, and accordingly appeal lies on that narrow issue alone.
The People now take the position that, in order for the court to pass on the legality of the corrective action, the court must first review the underlying merits to determine whether the evidence was legally insufficient.
The defendants, on the other hand, argue that, even if one were to assume that the evidence was indeed legally insufficient, the court is required, because of the Appellate Division’s recital that its reversal was on the facts and the law, to determine only the legality of the corrective action.
The Ruling:
The court cannot go behind the Appellate Division’s order, thus, the dismissal of the indictment was proper.
CPL 450.90 (subd. 2) provides that an appeal to the court of appeals from an order of an intermediate appellate court reversing or modifying a judgment, sentence or order of a criminal court may be taken only if: the intermediate appellate court’s order expressly states the determination of reversal or modification to be on the law alone; or the appeal is based upon a contention that corrective action, as that term is defined in section 470.10, taken or directed by the intermediate appellate court was illegal.
Here, a Nassau County Criminal Lawyer said the order of the Appellate Division does not expressly state that the reversal is on the law alone. In these circumstances, as the court concluded at the time it denied the motion to dismiss, the court must look to CPL 450.90 as the sole source of the court’s appellate power in the present case. That provision reasonably can be held to establish only one frame of reference for review of the legality of the corrective action, i.e., what the intermediate appellate court actually did and not what it might have or should have done. That is the only avenue provided for measuring the permissibility of the corrective action. And, since the determination of the Appellate Division is beyond review, the court is confined to testing the legality of its corrective action. By that determination, however, the court might otherwise assess the determination were it free to review it. If the court were to hold otherwise, it would be flying in the face of the clear language of the statute by doing indirectly what it cannot do directly. A New York Sex Crimes Lawyer said for review of the determination would have to rest on a merger of the concepts of reversal and corrective action and thus would vitiate the undisputed rule that the court can assert jurisdiction on the merits only where the reversal below was based on a question of law alone.
Moreover, it is also instructive to note how the present statutory pattern contrasts with that which prevailed prior to the adoption of the Criminal Procedure Law. Under its predecessor, the Code of Criminal Procedure, when an intermediate appellate court’s reversal was on the facts, a new trial resulted; under those circumstances, it had no power to dismiss the accusatory instrument. A dismissal by it of an indictment or information had to be based on the law alone, a predicate for review by the court. And, the only consequence of a recital by the intermediate appellate court that a reversal was based not on the law alone but on the facts as well then was to require, upon reversal by the court, that a new trial be granted; it did not proscribe the court’s review of the law question. It was against that background that the Legislature, presumably motivated by concern over whether there was fairness in affording the People more than one opportunity to prove their case, in enacting the Criminal Procedure Law introduced the present requirement for dismissal of an accusatory instrument where a reversal is stated to be predicated on factual considerations. As already indicated, that unequivocal requirement, combined with the plain wording of CPL 450.90, operates, as in the present case, to preclude the court, simply because of the wording of the order, from reaching the merits of what may be, in fact, purely legal questions.
In conclusion, a procedural law, adopted after careful legislative consideration of competing public policy considerations, is not to be disregarded at will simply because its impact on a particular case precludes additional appellate review after both parties have already enjoyed the advantages of a full and lengthy trial and of an equally exhaustive appeal. Absent a constitutional question, even the State’s highest court may not refuse to apply the plain import of an applicable statute, which, until and unless amended or repealed, must be respected as the law for all our people, no matter where positioned.
Hence, by reason of the corrective action taken by the Appellate Division as mandated for its stated determination by CPL 470.20 (subd. 2) which directs that when the evidence fails to establish a prima facie case, the accusatory instrument must be dismissed; the order so directing was legal and is affirmed.
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