People v. Cona, 49 N.Y.2d 26 (1979)
An appellate court’s reversal of a conviction must be based solely on questions of law, not on discretionary considerations, to be appealable to the New York Court of Appeals.
Summary
The New York Court of Appeals addressed whether an Appellate Division’s reversal of a criminal conviction was based solely on questions of law, which is a prerequisite for the Court of Appeals to have jurisdiction. The Court of Appeals held that because the Appellate Division’s decision appeared to rely, at least in part, on unpreserved errors and prosecutorial misconduct—issues that would involve discretionary review—the reversal was not “on the law alone.” Consequently, the Court of Appeals dismissed the appeal, clarifying the importance of a clear legal basis for appellate reversals to establish jurisdiction.
Facts
The defendant was convicted of a crime. On appeal, the Appellate Division initially reversed the conviction “on the law and as a matter of discretion in the interest of justice.” The People moved to resettle the order, seeking to eliminate the discretionary basis for the decision. The Appellate Division amended the order to state that the reversal was solely on the law.
Procedural History
The defendant was originally convicted. The Appellate Division reversed the conviction. The People moved to resettle the Appellate Division’s order to eliminate the reference to discretionary reversal. The Appellate Division amended its order, stating the reversal was solely on the law. The People then appealed to the New York Court of Appeals.
Issue(s)
Whether the Appellate Division’s reversal of the defendant’s conviction was based solely on a question of law, thus giving the Court of Appeals jurisdiction to hear the appeal.
Holding
No, because the Appellate Division’s memorandum opinion cited instances of prosecutorial misconduct for which no objections were made at trial, indicating a review based, at least in part, on discretionary considerations rather than purely legal errors.
Court’s Reasoning
The Court of Appeals emphasized its power to examine the substance of an appellate court’s order, not just its form, to determine if it meets the statutory requirements for review. Despite the amended order stating the reversal was “on the law alone,” the accompanying memorandum continued to reference instances of prosecutorial misconduct to which no objections were raised at trial. Such unpreserved errors do not present questions of law for appellate review. The court reasoned that “the failure to delete the references to these unpreserved errors makes it evident that the court’s decision must have been premised at least partially on the exercise of discretion and, hence, cannot be said to have been ‘on the law alone’.” The Court cited CPL 470.05, subd 2, noting that objections must be made to preserve issues for appellate review. Because the Appellate Division’s opinion relied on issues that were not properly preserved, it indicated that the decision was based, at least in part, on the court’s discretion. The Court of Appeals reiterated that intermediate appellate courts should not routinely grant motions to resettle orders solely to conform to the jurisdictional requirements of the Court of Appeals when the underlying basis for the decision remains unchanged in both the order and the opinion. The appeal was dismissed because the determination to reverse did not satisfy the jurisdictional predicate that it be made “on the law alone.”