New York Law Review

People v. Potwora, 48 N.Y.2d 91 (1979): Discretion to Modify Conspiracy Conviction

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The New York Law Review

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48 N.Y.2d 91 (1979)

A trial court has discretion to refuse to consider a motion to dismiss a defective indictment made after the commencement of the trial, and an appellate court has broad discretion to modify a conviction.

Summary

Defendants were convicted of conspiracy, and on appeal, they argued that the indictment was defective. The Court of Appeals held that the lower courts acted within their discretion in refusing to consider the motion to dismiss because it was not made before the trial began. Further, the court found that the Appellate Division’s modification of the conspiracy conviction to a lesser degree was within its discretion under CPL 470.15, which provides broad authority for appellate modifications.

Facts

The appellants were convicted of conspiracy in the third degree. The indictment specified grand larceny by extortion, bribery, and two minor charges of official misconduct as underlying counts to the conspiracy charge. The trial court dismissed the two minor charges. The jury returned a verdict of conspiracy in the second degree. The Appellate Division modified the conviction to conspiracy in the third degree.

Procedural History

The appellants were convicted of conspiracy. They appealed, arguing a defective indictment. The Appellate Division modified the conviction. The Court of Appeals reviewed the lower court decisions.

Issue(s)

1. Whether the lower courts erred in refusing to consider the motion to dismiss the indictment given its alleged defects when that motion was made after the trial commenced.
2. Whether the Appellate Division exceeded its authority when it modified the conviction to conspiracy in the third degree.

Holding

1. No, because CPL 210.20(2) gives the court discretion to refuse motions made after trial commencement.
2. No, because CPL 470.15 authorizes the appellate court to make modifications in situations that “include, but are not limited to” the listed conditions.

Court’s Reasoning

The Court of Appeals reasoned that CPL 210.20(2) grants discretion to the lower courts to refuse to consider motions to dismiss indictments made after the start of the trial. The Court found no abuse of that discretion. The court also pointed out that the actual charge to the jury made it clear that the conspiracy count related only to the conspiracy to commit grand larceny by extortion, which arguably supported even the verdict of conspiracy in the second degree returned by the jury. As to the modification, the Court of Appeals cited People v. Graham, 36 NY2d 633, 640, emphasizing that CPL 470.15 grants the appellate court broad authority to make such modifications in situations which “include, but are not limited to” the conditions listed therein. The court emphasized the breadth of appellate modification power.

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