People v. Rainey
| Decision Date | 24 September 1970 |
| Citation | 27 N.Y.2d 748,314 N.Y.S.2d 999,263 N.E.2d 395 |
| Parties | , 263 N.E.2d 395 PEOPLE, etc., Appellant, v. Riley RAINEY, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Defendant was convicted of first degree manslaughter.
The County Court, Nassau County, rendered judgment.
The Appellate Division reversed the judgment and ordered a new trial. Martuscello, J., dissented.
The People of the State of New York appealed to the Court of Appeals, and motion was made in the Court of Appeals to dismiss the appeal.
Motion to dismiss the appeal granted and the appeal dismissed. Although the Appellate Division order recites that its reversal was on the law and that the findings of fact were affirmed, the order must be read in conjunction with the opinion of that court (CCP section 543-a; People v. DeCourcy, 8 N.Y.2d 192, 196, 203 N.Y.S.2d 817, 168 N.E.2d 646; Cohen & Karger, Powers of the New York Court of Appeals, pp. 536, 763--764). Since no exception to the trial court's charge on self-defense was taken by defense counsel at the trial, no question of law on the propriety of the charge was presented to the Appellate Division (CCP 420-a; People v. Rossi, 11 N.Y.2d 379, 230 N.Y.S.2d 7, 183 N.E.2d 895; People v. Cohen, 5 N.Y.2d 282, 289, 184 N.Y.S.2d 340, 157 N.E.2d 499). The Appellate Division did, however, have the power to reverse and order a new trial in the interest of justice, notwithstanding the absence of an exception (CCP 527) and the court's citation to CCP 527 reveals that the order below was the result of the exercise of such discretion. Consequently, since we are unable to say that the reversal was on the law alone, we lack jurisdiction to review the order from which the People appeal (see People v. Rossi, Supra; People v. Cohen, Supra; People v. Redman, 225 N.Y. 206, 121 N.E. 785; People v. Caverio, 1 N.Y.2d 657, 150 N.Y.S.2d 24, 133 N.E.2d 512).
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