People v. Giles

• Citation: 543 N.Y.S.2d 37,73 N.Y.2d 666,541 N.E.2d 37
• Parties: , 541 N.E.2d 37 The PEOPLE of the State of New York, Appellant, v. Donald GILES, Respondent.
• Decision Date: 13 June 1989
• Court: New York Court of Appeals Court of Appeals

Page 37

543 N.Y.S.2d 37

73 N.Y.2d 666, 541 N.E.2d 37

The PEOPLE of the State of New York, Appellant, v. Donald GILES, Respondent.

Court of Appeals of New York.

June 13, 1989.

Robert M. Morgenthau, Dist. Atty. (Mary C. Farrington and Mark Dwyer, New York City, of counsel), for appellant.

Richard Joselson and Philip L. Weinstein, New York City, for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

At the outset of this People's appeal, we address whether the determination below satisfies this court's jurisdictional threshold that the decision was made on the law alone, or on the law and such facts which but for the determination of law would not have led to the Appellate Division's reversal (CPL 450.90[2][a]. That court's order recited the determination was "on the law and in the exercise of discretion", but the opinion manifests that but for the purely legal determination of the intermediate appellate court's power to grant the suppression motion on trial evidence alone, that court would not have reversed, without a hearing, the defendant's conviction. Inasmuch as the order of the Appellate Division is appealable under the remedial amendment to CPL 450.90(2)(a), a threshold determination consigned to us, we are able in this case to reverse, reinstate the judgment and remit for a hearing on the suppression motion.

Defendant was charged with criminal possession of a weapon and of a controlled substance, based on the seizure of contraband discovered after plain-clothes police officers stopped and searched the taxicab in which he and two others were passengers. Before trial, defendant made the customary motion to suppress all physical evidence, in which he challenged the legality of the stop and of the subsequent search of the vehicle. The motion was denied without a hearing on the ground that, under then-controlling case law, defendant lacked standing. A jury trial followed and defendant was convicted.

On appeal to the Appellate Division from the judgment of conviction bringing up for review the order denying suppression, defendant argued that he had standing for the suppression motion and that it should not have been denied without a hearing. The People conceded the point in light of this court's intervening and controlling decision in People v. Millan, 69 N.Y.2d 514, 516 N.Y.S.2d 168, 508 N.E.2d 903, and they asked the Appellate Division to remit to the trial court to give the defendant his suppression hearing.

The Appellate Division acknowledged that under Millan (supra) defendant had acquired standing for a suppression motion and a hearing, but instead of withholding determination of the appeal and remitting to Supreme Court for that purpose as would be its "usual practice", the court granted the suppression motion outright without any hearing by basing its determination on the trial evidence (137 A.D.2d 1, 4, 527 N.Y.S.2d 409). It recited that it was exercising its "fact-finding power in the interest of justice and judicial economy." The court then reversed the judgment of conviction and dismissed the indictment. A Judge of this court granted leave to appeal to the People to review the correctness of the Appellate Division's determination.

The appealability of intermediate appellate court orders was, as reformulated in 1970, restricted to cases where the order of reversal or modification was based "on the law" alone (see, CPL former 450.90[2][a]; L.1970, ch. 996; People v. Coppa, 45 N.Y.2d 244, 248-249, 408 N.Y.S.2d 365, 380 N.E.2d 195). As a result, when the Appellate Division expressly reversed "on the law and the facts", this court was unable to look beyond the recital in the order itself, requiring the appeal to be dismissed without review of any legal issue (People v. Johnson, 47 N.Y.2d 124, 417 N.Y.S.2d 46, 390 N.E.2d 764; People v. Sullivan, 29 N.Y.2d 937, 938, 329 N.Y.S.2d 325, 280 N.E.2d 98; but see, People v. Mackell, 36 N.Y.2d 964, 373 N.Y.S.2d 561, 335 N.E.2d 863, 40 N.Y.2d 59, 386 N.Y.S.2d 37, 351 N.E.2d 684).

In 1976, then-Chief Judge Breitel importuned the Legislature to amend CPL 450.90 to expand our authority to address a question of law even if the intermediate court's decretal clause recited what might superficially appear to be a barrier: "In the time- honored tradition for courts or their members to suggest legislative change when the cases before them seem to so require, it would appear to be eminently desirable to * * * restore to this court the power to review questions of law following a conviction for a crime, despite a recital that the reversal is also on the facts. Of course, such a revision would not and could not constitutionally confer upon this court the power to evaluate, under the guise of determining whether the intermediate appellate court has 'really' made factual determinations, the weight of the evidence, a question of fact (N.Y. Const., art. VI, § 3). Instead, under such a revision the court would review only questions of law. * * * As the statute now reads, however, a mistaken order by a court, or an intended frustration of appellate review (a situation definitely not present in this case as a reading of the Appellate Division opinion demonstrates) is effective to bar salutary review despite the presence of real issues of law" (People v. Mackell, 40 N.Y.2d 59, 64-65, 386 N.Y.S.2d 37, 351 N.E.2d 684 [Breitel, Ch. J., concurring], supra). Three years later, the Legislature responded (L. 1979, ch. 651). Most pertinently, the statute, as amended, allows this court to go behind the recitation in the decretal clause of the order and determine for itself whether a determinative legal question is present (People v. Albro, 52 N.Y.2d 619, 623-624, 439 N.Y.S.2d 836, 422 N.E.2d 496). If a reversal or modification was predicated upon the application of a legal principle, the Court of Appeals was to be permitted for the first time to act on the determination of the intermediate appellate court on the law issue only and, if necessary, to remit for further consideration by the courts below (see, People v. Washington, 71 N.Y.2d 916, 528 N.Y.S.2d 531, 523 N.E.2d 818).

The Appellate Division had a threshold legal question to resolve before issuing the plenary dismissal of the indictment in this case: did it have the power to rely upon later-developed trial evidence to retrospectively decide the merits of an unlitigated suppression motion? The court reasoned that it could do so and then, despite the People's argument that they were entitled to one hearing opportunity, looked to the trial evidence "produced" by the prosecutor at trial, asserting that this efficient bypass nevertheless afforded the People "a full opportunity to be heard" (137 A.D.2d, at 5, 527 N.Y.S.2d 409) on the suppression issue in satisfaction of the rule of People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269. Thus, only after making its predicate legal determination to act in this fashion at all, did the court then proceed to the second tier of its decision-making process--consideration and application of the trial evidence to arrive at a factual determination that suppression was warranted on the merits.

Exercising the authority uniquely reposed in us to determine our jurisdictional range in such instances, we acknowledge that the Appellate Division's forthright opinion does effect a judicial economy, but it also unavoidably...