Opinion
Submitted January 3, 1972
Decided January 13, 1972
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, GEORGE POSTEL, J.
William A. Nelson and Robert Kasanof for motion.
Frank S. Hogan, District Attorney ( Michael R. Juviler, David Otis Fuller, Jr. and Robert A. Goldschlag of counsel), opposed.
Motion granted and appeal dismissed. This court may entertain an appeal from an order of the Appellate Division reversing a judgment of conviction and ordering a new trial only if such reversal be on the law alone (Cohen and Karger, Powers of the New York Court of Appeals, p. 754). Where an Appellate Division order recites that its reversal is "on the law", the court may look to the opinion to determine whether the Appellate Division reversed on the facts or in the exercise of discretion ( People v. Woodruff, 27 N.Y.2d 801, 802; People v. Rainey, 27 N.Y.2d 748; cf. People v. Rossi, 11 N.Y.2d 787). But another rule applies where the Appellate Division expressly reversed on the law and the facts. In such case the court has not looked beyond the recital in the order, and has therefore dismissed ( People v. Tomlin, 2 N.Y.2d 758; cf. People v. Cohen, 5 N.Y.2d 282, 286-288; Cohen and Karger, op. cit., supra, pp. 754, 766-767). In this case, the order recites that reversal was "on the facts", as well as on the law, and, therefore, there is no alternative but to dismiss the appeal. Moreover, the indictment was not dismissed and the action was remanded for further proceedings, thus in effect directing a new trial. The direction of a new trial might, in any event, have been ordered in the discretion of the Appellate Division, and therefore involved a question not resting on the law alone. ( People v. Tomlin, supra; CPL 450.90, subd. 2; 470.20, subd. 1.)