People v. Mackell

Decision Date10 June 1976
Parties, 351 N.E.2d 684 The PEOPLE of the State of New York, Appellant, v. Thomas J. MACKELL et al., Respondents.
CourtNew York Court of Appeals Court of Appeals

Maurice H. Nadjari, Deputy Atty. Gen., Sp. State Prosecutor (Bennett L. Gershman and Allen G. Swan, New York City, of counsel), for appellant.

Charles S. Desmond and Robert J. McGuire, New York City, for Thomas J. Mackell and James D. Robertson, respondents.

Allan Sturim, Kew Gardens, for Frank R. Di Paola, respondent.


The defendants were convicted, at an Extraordinary Special and Trial Term of the Supreme Court, of conspiracy in the fourth degree, hindering prosecution in the third degree and official misconduct. On appeal, the Appellate Division, finding that the evidence was legally insufficient, unanimously reversed, expressly stating it did so on the law and the facts, and dismissed the indictment (47 A.D.2d 209, 366 N.Y.S.2d 173).

We have previously delineated the issue now before us in the course of deciding a motion made by the defendants to dismiss this appeal on the ground that our court lacks jurisdiction to entertain it. In refusing to dismiss, we said that '(a)lthough the Reversals * * * are not appealable * * * the issue of the illegality of the Corrective action is nonetheless itself an appealable issue (CPL 450.90, subd. 2, par. (b)), and accordingly appeal lies on that narrow issue alone' (emphasis in the text) 36 N.Y.2d 964, 965, 373 N.Y.S.2d 561, 335 N.E.2d 863.

The People now take the position that, in order for us to pass on the legality of the corrective action, we must first review the underlying merits to determine whether the evidence was legally insufficient. The defendants, on the other hand, argue that, even if one were to assume that the evidence was indeed legally insufficient, we are required, because of the Appellate Division's recital that its reversal was on the facts and the law, to determine only the legality of the corrective action.

For the reasons which follow, we hold that we cannot go behind the Appellate Division's order and that, therefore, the dismissal of the indictment was proper.

Our analysis turns particularly on the language of CPL 450.90 (subd. 2) which provides:

'An appeal to the court of appeals from an order of an intermediate appellate court reversing or modifying a judgment, sentence or order of a criminal court may be taken Only if:

'(a) The intermediate appellate court's order Expressly states the determination of reversal or modification to be On the law alone; or

'(b) The appeal is based upon a contention that corrective action, as that term is defined in section 470.10, taken or directed by the intermediate appellate court was illegal.' (Emphasis added.)

Manifestly, the order of the Appellate Division does not 'expressly state' that the reversal here is 'on the law alone' as specified by paragraph (a) of subdivision 2's unambiguous language (cf. People v. Pendleton, 35 N.Y.2d 690, 361 N.Y.S.2d 160, 319 N.E.2d 422; People v. Williams, 31 N.Y.2d 151, 153, 335 N.Y.S.2d 271, 272, 286 N.E.2d 715, 716; People v. Sullivan, 29 N.Y.2d 937, 938, 329 N.Y.S.2d 325, 326, 280 N.E.2d 98, 99).

In these circumstances, as we concluded at the time we denied the motion to dismiss, we must look to paragraph (b) of subdivision 2 as the sole source of our appellate power in the present case. That provision reasonably can be held to establish only one frame of reference for review of the 'legality' of the corrective action, i.e., what the intermediate appellate court actually did, not what it might have or should have done. That is the only avenue provided for measuring the permissibleness of the corrective action. And, since the determination of the Appellate Division here is beyond our review under paragraph (a) of subdivision 2, we are confined to testing the legality of its corrective action under paragraph (b) of subdivision 2 by that determination, however we might otherwise assess the determination were we free to review it. (People v. Crimmins, 36 N.Y.2d 230, 236, 367 N.Y.S.2d 213, 217, 326 N.E.2d 787, 790.) Were we to hold otherwise, we would be flying in the face of the clear language of the statute by doing indirectly what we cannot do directly. For review of the determination would have to rest on a merger of the concepts of reversal and corrective action and thus would vitiate the undisputed rule that this court can assert jurisdiction on the merits only where the reversal below was based on a question of law alone (CPL 450.90, subd. 2, par. (a)).

It is also instructive to note how the present statutory pattern contrasts with that which prevailed prior to the adoption of the Criminal Procedure Law, which became effective September 1, 1971. Under its predecessor, the Code of Criminal Procedure, when an intermediate appellate court's reversal was on the facts, a new trial resulted; under those circumstances, it had no power to dismiss the accusatory instrument (People v. Klose, 18 N.Y.2d 141, 144, 272 N.Y.S.2d 352, 353, 219 N.E.2d 180, 181; People v. Nappi, 18 N.Y.2d 136, 140, 272 N.Y.S.2d 347, 350, 219 N.E.2d 176, 178; People v. Bellows, 281 N.Y. 67, 75, 76, 22 N.E.2d 238, 241, 242; People v. Peck, 205 N.Y. 554, 98 N.E. 1111; Cohen and Karger, Powers of the New York Court of Appeals, § 202, p. 758). A dismissal by it of an indictment or information had to be based on the law alone, a predicate for review by this court (People v. Klose, supra; People v. Bellows, supra). And, the only consequence of a recital by the intermediate appellate court that a reversal was based not on the law alone but on the facts as well then was to require, upon reversal by this court, that a new trial be granted; it did not proscribe our review of the law question (People v. McCaleb, 25 N.Y.2d 394, 404, 306 N.Y.S.2d 889, 896, 255 N.E.2d 136, 141).

It was against that background that the Legislature, presumably motivated by concern over whether there was fairness in affording the People more than one opportunity to prove their case (Denzer, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 470.20, pp. 608--609), 1 in enacting the Criminal Procedure Law introduced the present requirement for dismissal of an accusatory instrument where a reversal is stated to be predicated on factual considerations (CPL 470.20, subd. 2, 3, 4, 5). As already indicated, that unequivocal requirement, combined with the plain wording of CPL 450.90 (subd. 2, par. (a)), operates, as in the present case, to preclude this court, simply because of the wording of the order, from reaching the merits of what may be in fact purely legal questions (e.g., People v. Pendleton, 35 N.Y.2d 690, 361 N.Y.S.2d 160, 319 N.E.2d 422, Supra). 2

Needless to say, a procedural law, adopted after careful legislative consideration of competing public policy considerations, is not to be disregarded at will simply because its impact on a particular case precludes additional appellate review after both parties have already enjoyed the advantages of a full and lengthy trial and of an equally exhaustive appeal. Absent a constitutional question, even the State's highest court may not refuse, as the dissent would have us do, to apply the plain import of an applicable statute, which, until and unless amended or repealed, must be respected as the law for all our people, no matter where positioned.

Accordingly, since the corrective action taken by the Appellate Division is precisely that mandated for its stated determination by CPL 470.20 (subd. 2), which directs that when the evidence fails to establish a prima facie case an accusatory instrument 'must' be dismissed, the order so directing was legal and must be affirmed.

BREITEL, Chief Judge (concurring).

A reading of the opinion by the Appellate Division, let alone of the record in the case, demonstrates that the basis for that court's view in overturning the judgments of conviction was the Trial Justice's grave errors, gross prosecutorial misconduct, and legal insufficiency of evidence. The opinion says as much. It could have hardly said anything on the weight of the evidence in view of the quantity and quality of the evidence received on the trial. If that were all to the matter there would be no question that these issues, constituting exclusively issues of law, are reviewable by this court. The Appellate Division, however, in its order reversed the convictions 'on the law and the facts' and dismissed the indictment.

By including 'the facts' in its order, the Appellate Division barred this court from review of the issue of legal insufficiency, concerning which one or more might come to a contrary conclusion. But by reason of the recital in the order of the Appellate Division, inconsistent with the language used by it in its extensive opinion, all but one of us considers the court barred from review of the real and substantial legal issues in the case.

Obviously, this produces an unfortunate and undesirable condition. Oddly enough, before the enactment of CPL, in the manner discussed by the majority opinion, there would have been no such bar to this court's review of the issue of the legal sufficiency of the evidence effected by two little words 'the facts' (see People v. McCaleb, 25 N.Y.2d 394, 396, 404, 306 N.Y.S.2d 889, 890, 896, 255 N.E.2d 136, 137, 141).

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 retrace the legislative step and restore to this court the power to review questions of law following a convicti 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...

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    ...cases, other than where the judgment is of death, to the review of questions of law.” People v. Mackell, 40 N.Y.2d 59, 66, 386 N.Y.S.2d 37, 351 N.E.2d 684 (N.Y.1976) (Jasen, J., dissenting) (citing N.Y. Const., art. VI, § 3(a) (“The jurisdiction of the court of appeals shall be limited to t......
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    ...Court Opinions, §§ 88, 91; cf. People v. Belge, 41 N.Y.2d 60, 62, 390 N.Y.S.2d 867, 359 N.E.2d 377; People v. Mackell, 40 N.Y.2d 59, 64-65, 386 N.Y.S.2d 37, 351 N.E.2d 684 ). 1 This is such a case. As the majority notes, the identification procedures employed in this case were improper and ......
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    ...instrument where a reversal is stated to be predicated on factual considerations (CPL 470.20 [ (2)-(5) ] )” ( People v. Mackell, 40 N.Y.2d 59, 63, 386 N.Y.S.2d 37, 351 N.E.2d 684). As Professor Preiser noted, “[i]n the case of weight of the evidence, dismissal was chosen for the CPL rule on......
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2 books & journal articles
  • Relevance, materiality & presumptions
    • United States
    • James Publishing Practical Law Books New York Objections
    • May 3, 2022
    ...proof of the conspiracy and the defendant’s participation); People v. Mackell , 47 A.D.2d 209, 366 N.Y.S.2d 173 (2d Dept. 1975), aff ’d , 40 N.Y.2d 59, 351 N.E.2d 684 (1976) (it is improper for the court to take proof subject to connection and then never rule as to the permitted use of the ......
  • Relevance, materiality & presumptions
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2021 Contents
    • August 2, 2021
    ...proof of the conspiracy and the defendant’s participation); People v. Mackell , 47 A.D.2d 209, 366 N.Y.S.2d 173 (2d Dept. 1975), af ’d , 40 N.Y.2d 59, 351 N.E.2d 684 (1976) (it is improper for the court to take proof subject to connection and then never rule as to the permitted use of the p......

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