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
SUPREME COURT PROPERLY DETERMINED THE COLLATERAL SUPPORTING A POSTED BAIL BOND WAS INSUFFICIENT TO ENSURE THE ACCUSED’S RETURN TO COURT, APPELLATE DIVISION REVERSED (CT APP).
DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TWO CROSS-EXAMINE THE TWO POLICE OFFICERS WHO IDENTIFIED THE DEFENDANT AS THE SHOOTER ABOUT ALLEGATIONS OF THE OFFICERS’ DISHONESTY ARISING FROM OTHER COURT PROCEEDINGS (CT APP).
USING ANOTHER’S CREDIT CARD ACCOUNT NUMBER TO MAKE PURCHASES, WITHOUT PHYSICAL POSSESSION OF THE CARD, SUPPORTS A GRAND LARCENY CONVICTION (CT APP).
FORMULAIC LANGUAGE INDICATING THE ACCEPTANCE OF A BID WAS SUBJECT TO A WRITTEN AGREEMENT AND DEPOSIT DID NOT NEGATE THE FORMATION OF A BINDING CONTRACT UPON ACCEPTANCE.
CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP).
PLAINTIFF LANDLORD, PURSUANT TO THE VILLAGE WATER DEPARTMENT’S RULES, CAN NOT BE HELD PERSONALLY LIABLE FOR THE TENANT’S UNPAID WATER BILLS (CT APP).
EVEN WHERE THE CLASS HAS NOT BEEN CERTIFIED, CPLR 908 REQUIRES THE PUTATIVE CLASS MEMBERS BE GIVEN NOTICE OF THE SETTLEMENT OR DISMISSAL OF THE ACTION (CT APP).
Admission of Child Abuse Made by Defendant to Psychiatrist Protected by Physician-Patient Privilege—Even Though the Admission Can Be Disclosed in Child Protective Proceedings, the Privilege Applies in a Criminal Trial

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...