52 N.Y.2d 976 (1981)
An intermediate appellate court has discretion under CPL 470.15(2)(a) to order a new trial on remaining counts after dismissing a count for insufficient evidence, even if evidence supports a conviction for a lesser included offense of the dismissed count; a reduction to a lesser included offense is not mandatory.
Summary
The New York Court of Appeals affirmed the Appellate Division’s order for a new trial. The Appellate Division had dismissed one count of the indictment against Holmes for insufficient evidence but ordered a new trial on the remaining counts, which the trial court instructed the jury not to consider if they found Holmes guilty on the first count. The Court of Appeals held that CPL 470.15(2)(a) gives the Appellate Division discretion to order a new trial, and reducing the conviction to a lesser included offense is not mandated by the statute. The dissent argued that the Appellate Division should have reduced the conviction to a lesser included offense.
Facts
Anthony Holmes was indicted and tried on multiple counts. The jury found him guilty on the first count. The trial court had instructed the jury not to consider the remaining counts if they found the defendant guilty under the first count. The Appellate Division dismissed the first count for insufficient evidence.
Procedural History
The trial court convicted Holmes. The Appellate Division dismissed the first count of the indictment and ordered a new trial on the remaining counts. The People appealed to the New York Court of Appeals, arguing that the Appellate Division should have reduced the conviction to a lesser included offense rather than ordering a new trial. The Court of Appeals affirmed the Appellate Division’s order.
Issue(s)
Whether the Appellate Division, upon dismissing a count of an indictment for insufficiency of evidence, is required to reduce the conviction to a lesser included offense if the evidence is sufficient to support such a conviction, or whether it has discretion to order a new trial on the remaining counts.
Holding
No, because CPL 470.15(2)(a) grants the Appellate Division discretion in such a situation; it “may modify the judgment by changing it to one of conviction for the lesser offense,” but is not required to do so.
Court’s Reasoning
The Court of Appeals focused on the permissive language of CPL 470.15(2)(a), which states the intermediate appellate court “may modify the judgment by changing it to one of conviction for the lesser offense.” The court emphasized the word “may,” concluding that the statute does not mandate a reduction to a lesser included offense. The court distinguished this case from People v. Dlugash, 41 N.Y.2d 725, noting that Dlugash involved the dismissal of a single-count indictment where no retrial was possible, whereas here, a new trial was ordered on remaining counts. The dissent argued that the majority ignored established rules of statutory construction, which dictate that permissive words conferring power upon public officers are generally mandatory when the act authorized concerns the public interest or individual rights. The dissent contended that the Appellate Division erred in ordering a new trial “on the law” and should have reduced the conviction to a lesser included offense. The dissent emphasized that CPL 470.20 requires corrective action to rectify any injustice and protect the rights of the respondent (the People). According to the dissent, ordering a new trial dissolved the jury’s finding of guilt on a lesser charge without articulating any reason for doing so, which was an injustice to the People. The majority countered the dissent’s interpretation of CPL 470.20(4), clarifying that it merely sets forth the steps to be taken concerning the defendant’s sentence after the intermediate appellate court has in fact reduced the conviction to one for a lesser included offense and does not require the reduction itself.