Summary
In Dunn, Supreme Court purported to dismiss an indictment under Judiciary Law § 2-b (3), a statute not mentioned in CPL 450.20's grant of appellate jurisdiction.
Summary of this case from People v. AlonsoOpinion
69.
Argued March 31, 2005.
Decided April 28, 2005.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered June 8, 2004. The Appellate Division granted the People's motion for reargument and, upon reargument, adhered to an order of that Court entered December 22, 2003 (op 2 AD3d 747) dismissing the plaintiff's appeal from an order of the Supreme Court, Kings County (Anne G. Feldman, J.), which had, sua sponte, set aside defendant's conviction, upon a jury verdict, of murder in the second degree.
People v. Dunn, 2 AD3d 747, affirmed.
Charles J. Hynes, District Attorney, Brooklyn ( Seth M. Lieberman, Leonard Joblove and Ann Bordley of counsel), for appellant.
Feldman and Feldman, Uniondale ( Steven A. Feldman of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, READ and R.S. SMITH concur.
OPINION OF THE COURT
The issue in this case is whether CPL 450.20 allows the People to appeal from a sua sponte order of a trial court setting aside a verdict pursuant to Judiciary Law § 2-b (3). We conclude that such an appeal is not authorized by the Criminal Procedure Law and must instead be challenged in a CPLR article 78 proceeding.
Defendant was charged with murder and related offenses stemming from her alleged participation in a shooting outside a Brooklyn nightclub. She was convicted of murder in the second degree and moved to set aside the verdict under CPL 330.30. Supreme Court denied the motion but nevertheless overturned the verdict sua sponte. Relying on Judiciary Law § 2-b (3) in a procedure that the trial judge recognized to be "highly unusual," the court vacated defendant's conviction on the ground that defense counsel had failed to meaningfully represent defendant.
Judiciary Law § 2-b (3) provides that a court may "devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it."
The People's appeal from the order was dismissed by the Appellate Division. The Court concluded that the Criminal Procedure Law does not authorize an appeal by the People from an order setting aside a verdict made on a trial court's own motion. The Appellate Division adhered to its determination on reargument. A Judge of this Court granted leave to appeal and we now affirm.
It is well settled that "[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute" ( People v. Hernandez, 98 NY2d 8, 10). CPL 450.20 delineates the orders that may be appealed by the People to an intermediate appellate court. As relevant to this case, subdivision (3) of the statute authorizes a People's appeal from "[a]n order setting aside a verdict, entered pursuant to section 330.30 or 370.10" of the Criminal Procedure Law. The trial court's order in this case, however, was premised on Judiciary Law § 2-b (3), which is not one of the enumerated statutory predicates for an appeal by the People. Consequently, the trial court's order was facially nonappealable under CPL 450.20 (3).
The People, recognizing that the trial court relied upon Judiciary Law § 2-b (3) to set aside the verdict, contend that the court's order should be deemed to have been made pursuant to CPL 330.30 because it was based on the ineffective assistance of counsel, a claim that could have been reviewed on direct appeal. In light of the unequivocal declaration by the trial court that it was not relying on CPL 330.30, we will "`not resort to interpretative contrivances to broaden the scope and application'" of CPL 450.20 ( People v. Hernandez, 98 NY2d at 10, quoting People v. Laing, 79 NY2d 166, 170-171), especially when an adequate legal remedy aside from a direct appeal was available to the People. As we explained in Matter of Pirro v. Angiolillo ( 89 NY2d 351), the People may seek a writ of prohibition in a CPLR article 78 proceeding when a trial court clearly acts in excess of its authorized powers and there is "no adequate remedy at law" to address the People's grievance ( id. at 359). Here, as in Pirro, the proper vehicle for the People to challenge Supreme Court's order was an article 78 proceeding, not a direct appeal.
Accordingly, the order of the Appellate Division should be affirmed.
Order affirmed.