People v. Holmes

• Decision Date: 17 February 1981
• Citation: 52 N.Y.2d 976,438 N.Y.S.2d 284,420 N.E.2d 82
• Parties: , 420 N.E.2d 82 The PEOPLE of the State of New York, Appellant, v. Anthony HOLMES, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 284

438 N.Y.S.2d 284

52 N.Y.2d 976, 420 N.E.2d 82

The PEOPLE of the State of New York, Appellant, v. Anthony HOLMES, Respondent.

Court of Appeals of New York.

Feb. 17, 1981.

Eugene Gold, Dist. Atty. (Peter Weinstein, Asst. Dist. Atty., of counsel), for appellant.

Diana Budzanoski and William E. Hellerstein, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 71 A.D.2d 904, 419 N.Y.S.2d 614, should be affirmed.

We cannot say that, upon dismissing count one of the indictment for insufficiency of the evidence, the Appellate Division took inappropriate action in ordering a new trial on the remaining counts, which the trial court had charged the jury not to consider if they found the defendant guilty under the first count. A reduction to reflect a conviction for a lesser included offense is not mandated in such event. ^* CPL 470.15 (subd. 2) provides in pertinent part that "ways in which may modify a judgment include, but are not limited to, the following: (a) Upon a determination that the trial evidence adduced in support of a verdict is not legally sufficient to establish the defendant's guilt of an offense of which he was convicted but is legally sufficient to establish his guilt of a lesser included offense, the court may modify the judgment by changing it to one of conviction for the lesser offense". The use of the word "may" contained within this statute must be emphasized in examining the action taken below.

We note that we are not presented with a situation similar to that in People v. Dlugash, 41 N.Y.2d 725, 395 N.Y.S.2d 419, 363 N.E.2d 1155. Since the present appeal did not involve the dismissal of a single-count indictment for which there could be no retrial (see People v. Mayo, 48 N.Y.2d 245, 422 N.Y.S.2d 361, 397 N.E.2d 1166) and, hence, we do not deal further with this issue.

MEYER, Judge (dissenting).

The majority ignores the long-settled rules that whether legislation is permissive or mandatory is to be determined not only from the language of the statute, but also from the circumstances surrounding its passage and the object sought to be accomplished, and that permissive words conferring power and authority upon public officers or bodies will generally be held mandatory when the act authorized concerns either the public interest or the rights of individuals (People ex rel. Otsego County i Bank v. Board of Supervisors of Otsego County, 51 N.Y. 401, 405; People ex rel. Conway v. Board of Supervisors of Livingston County, 68 N.Y. 114, 119; People ex rel. Reynolds v. Common Council of City of Buffalo, 140 N.Y. 300, 306, 35 N.E. 485; People ex rel. Doscher v. Sisson, 222 N.Y. 387, 395, 118 N.E. 789; Matter of Jordan v. Smith, 137 Misc. 341, 345, 242 N.Y.S. 142, aff'd 254 N.Y. 585, 173 N.E. 877; Treherne-Thomas v. Treherne-Thomas, 267 App.Div. 509, 512, 46 N.Y.S.2d 697).

While our jurisdiction is, with exceptions not applicable to this case, limited to questions of law, the Appellate Division is empowered to reverse or modify a criminal judgment "based upon a determination made * * * the law * * * the facts * * * or a matter of discretion in the interest of justice" (CPL 470.15, subd. 3, pars. It is against this broad jurisdictional mandate and in light of the rules of construction set forth above as well as our prior pertinent decisions that the Legislature's use of the word "may" in CPL 470.15 (subd. 2, par. must be construed. Considered against that background the latter provision does not authorize the ordering of a new trial "on the law" as was done here. I, therefore, respectfully dissent.

The CPL contemplates three situations in which determinations of legally insufficient evidence may be made by an intermediate appellate court. The first is where the evidence is insufficient to establish guilt of an offense of which defendant was convicted as well as any lesser included offense (compare CPL 470.15, subd. 2, par. and subd. 4, par. The second is where a lesser included offense, but not the offense of which defendant was convicted, is supported by legally sufficient evidence (see CPL 470.15, subd. 2, par. The third is where an offense of which defendant was convicted is supported by legally sufficient evidence and another is not (see CPL 470.15, subd. 2, par. Appropriate action is authorized for each situation: in the first case, dismissal (see CPL 470.20, subd. 2); in the second, reduction and affirmance (see CPL 470.20, subd. 4); in the third, affirmance and dismissal (see CPL 470.20, subd. 3).

The CPL also provides that "reversing or modifying a judgment * * * of a criminal court, an intermediate appellate court must take or direct such corrective action as is necessary and appropriate both to rectify any injustice to the appellant resulting from the error or defect which is the subject of the reversal or modification and to protect the rights of the respondent" (CPL 470.20). Thus, the statute recognizes that where an error or defect requires reversal of one offense of which defendant was convicted but does not require reversal of other offenses or preclude affirmance of lesser included offenses, there may nonetheless be reasons why an "injustice" would result if the alternate or lesser convictions were affirmed. The statute also recognizes that the People, as respondent, have rights which require protection whenever "necessary and appropriate" corrective action is ordered.

Here, there is no finding by the Appellate Division that any "injustice" would result from reduction and affirmance. Nor is there anything brought to our attention in the record to indicate the possibility of such "injustice" occurring. Indeed, to the extent any injustice has been done, it has been done to the People who have already proved, to a jury's satisfaction, defendant's guilt of robbery in the third degree beyond a reasonable doubt, and who now have had such a jury finding dissolved without articulation of any reason for doing so.

This is not to say that the Appellate Division must in every case reduce and affirm where legally sufficient evidence supports conviction of a lesser included offense but not the actual offense of which defendant was convicted. It is to say that the intermediate appellate court may not "on the law," as purportedly done here, choose dismissal over reduction and affirmance. Put...