ON THE PEOPLE’S APPEAL, THE TRIAL COURT’S VACATION OF THE JUDGMENT OF CONVICTION BASED ON NEW EVIDENCE WAS REVERSED; THE NEW EVIDENCE INDICATED THAT, ALTHOUGH DEFENDANT WAS NOT THE SHOOTER, DEFENDANT WAS AN ACCOMPLICE TO THE SHOOTER; AN INTERMEDIATE APPELLATE COURT CAN ONLY CONSIDER THE TRIAL COURT’S GROUNDS FOR ITS RULINGS, OR RULINGS ADVERSE TO THE APPELLANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and denying the motion to vacate the criminal possession of a weapon conviction, determined new evidence which indicated defendant was not the shooter but had provided the machine gun to the shooter (Scott)  would not have resulted in a more favorable verdict. Defendant would have been convicted as an accomplice. In rejecting an argument on appeal that was not part of the ruling below, the Fourth Department explained that its appellate jurisdiction is limited to grounds relied on by the trial court which were adverse to the appellant:

… [W]e conclude that the evidence in question is not “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g] …). Scott’s deposition testimony establishes that defendant possessed the loaded machine gun, provided it to Scott, transported Scott to the vicinity of the crime, and had a motive to harm the victims because his family had “beef” with theirs, thus providing sufficient evidence to support a verdict of guilty as an accomplice to the weapons possession of which he was convicted … . ” ‘[W]hether one is the actual perpetrator of the offense or an accomplice is, with respect to criminal liability for the offense, irrelevant’ ” … .

Defendant requests that we affirm on the ground, which he asserted in the court below, that consideration of the new evidence in light of a theory of accessorial liability requires an impermissible amendment to the indictment. We agree with the People that we have no authority to affirm on that basis … .

Under CPL 470.15 (1), “[u]pon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” * * * The Appellate Division engages in “the type of appellate overreaching prohibited by CPL 470.15 (1)” when it “renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in [the appellant’s] favor” … .

Here, the court determined that “the accessorial liability theory, if presented at a new trial, would not constitute an impermissible amendment to the indictment in violation of the defendant’s constitutional rights,” clearly resolving that issue in the People’s favor.  People v Dixon, 2024 NY Slip Op 06473, Fourth Dept 12-20-24

Practice Point: New evidence indicated defendant was not the shooter but had provided the weapon to the shooter with the requisite intent. Because the new evidence would not have resulted in a more favorable verdict on the criminal possession of a weapon charge, defendant’s motion to vacate the judgment of conviction should have been denied.

Practice Point: An intermediate appellate court can only consider grounds for rulings relied on by the trial court or rulings adverse to the appellant.