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eBook details

• Title: People State New York v. Lawrence Sullivan
• Author : Court of Appeals of New York
• Release Date : January 13, 1972
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 58 KB

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[29 N.Y.2d 937 Page 938] Motion granted and appeal dismissed. This court may entertain an appeal from an order of the Appellate Division reversing
a judgment of conviction and ordering a new trial only if such reversal be on the law alone (Cohen and Karger, Powers of
the New York Court of Appeals, p. 754). Where an Appellate Division order recites that its reversal is "on the law", the court
may look to the opinion to determine whether the Appellate Division reversed on the facts or in the exercise of discretion
(People v. Woodruff, 27 N.Y.2d 801, 802; People v. Rainey, 27 N.Y.2d 748; cf. People v. Rossi, 11 N.Y.2d 787). But another
rule applies where the Appellate Division expressly reversed on the law and the facts. In such case the court has not looked
beyond the recital in the order, and has therefore dismissed (People v. Tomlin, 2 N.Y.2d 758; cf. People v. Cohen, 5 N.Y.2d
282, 286-288; Cohen and Karger, op. cit., supra, pp. 754, 766-767). In this case, the order recites that reversal was "on
the facts", as well as on the law, and, therefore, there is no alternative but to dismiss the appeal. Moreover, the indictment
was not dismissed and the action was remanded for further proceedings, thus in effect directing a new trial. The direction
of a new trial might, in any event, have been ordered in the discretion of the Appellate Division, and therefore involved
a question not resting on the law alone. (People v. Tomlin, supra ; CPL 450.90, subd. 2; 470.20, subd. 1.)

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