You are here: / / THE APPEAL OF AN UNPRESERVED ISSUE DID NOT PRESENT A QUESTION OF LAW REVIEWABLE...
,

THE APPEAL OF AN UNPRESERVED ISSUE DID NOT PRESENT A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS, THREE JUDGES DISSENTED (CT APP).

The Court of Appeals, over an extensive two-judge dissenting opinion, and another dissent, determined that the modification by the Appellate Division could not be appealed:

“[A]n Appellate Division reversal [or modification] based on an unpreserved error is considered an exercise of the Appellate Division’s interest of justice power” … . Moreover, the Appellate Division’s characterization of its own holding (i.e., “on the law” or “on the facts”) is not binding; in determining jurisdiction, we look behind that characterization to discern the basis of the ruling … . …

Here, it is undisputed that, in vacating the first-degree robbery count (without disturbing the second-degree robbery convictions …), the Appellate Division relied upon an unpreserved argument concerning the proper interpretation of and minimum proof required to establish the weapon display element of the first-degree offense … . As we have repeatedly recognized, for jurisdictional purposes an unpreserved issue of this nature does not present a question of law. Thus, the Appellate Division determination — the basis of the order of modification — was not “on the law alone” but was necessarily made as a matter of discretion in the interest of justice … . People v Allende, 2019 NY Slip Op 07523, Ct App 10-22-19

 

You might also like
PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT.
NO REASONABLE VIEW OF THE EVIDENCE SUPPORTED ANYTHING LESS THAN SERIOUS PHYSICAL INJURY, REQUEST FOR A JURY CHARGE ON ASSAULT THIRD WAS PROPERLY DENIED (CT APP). ​
CONDOMINIUM UNIT OWNERS’ AUTHORIZATION OF THE CONDOMINIUM BOARD TO CHALLENGE THE CONDOMINIUM’S REAL PROPERTY TAX ASSESSMENT REMAINS VALID FOR SUBSEQUENT TAX YEARS UNLESS CANCELED OR RETRACTED, THERE IS NO NEED FOR YEARLY AUTHORIZATIONS (CT APP).
A CONTRACTUAL NEW YORK CHOICE OF LAW PROVISION OVERRIDES AN OTHERWISE APPLICABLE NEW YORK STATUTORY CHOICE OF LAW PROVISION WHICH WOULD REQUIRE THE APPLICATION OF ANOTHER STATE’S LAW.
tenant’s failure to report income from a new job to the new york city housing authority was a sufficient reason to terminate her tenancy.
UNDER THE FACTS, THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY TO CONSIDER COERCION IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE, DESPITE THE FACT THAT COERCION IN THE FIRST DEGREE AND COERCION IN THE SECOND DEGREE HAVE IDENTICAL ELEMENTS. 
ONCE JUDGMENT WAS ENTERED, SUPREME COURT DID NOT HAVE JURISDICTION TO ENTERTAIN A MOTION FOR STATUTORY INTEREST.
THE POLICE WERE ALLOWED INTO THE VESTIBULE OF A TWO-FAMILY RESIDENCE BUT WERE NOT GIVEN PERMISSION TO ENTER THE APARTMENT WHERE DEFENDANT WAS SEIZED; DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (CT APP).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PROOF PRESENTED TO THE GRAND JURY DID NOT SUPPORT ATTEMPTED THIRD OR FOURTH... PLAINTIFF’S ‘DENIAL OF A FAIR TRIAL’ ACTION PURSUANT TO 42...