People v. AlonsoPeople v. Alonso
Lead Opinion
OPINION OF THE COURT
Several months into a criminal trial on charges related to alleged Medicaid fraud, Supreme Court determined that the People had failed to meet their obligation to disclose exculpatory evidence pursuant to Brady v Maryland (
The People brought an appeal to the Appellate Division. That court, however, dismissed the appeal without passing upon the merits. The Appellate Division reasoned that the People lacked the statutory right to bring an appeal from a dismissal of an indictment in response to a discovery violation (People v Alonso,
Historically, the People “were authorized, in general terms, to appeal to an intermediate appellate court from any order dismissing an indictment on any ground other than insufficiency of the evidence at trial” (People v Coppa,
Here, neither Supreme Court’s order dismissing the indictments nor its otherwise comprehensive discussion on the record with counsel as to how it should address the Brady violation unequivocally states on what authority Supreme Court relied in dismissing the indictments. However, in context, it is clear that Supreme Court premised the dismissal of the indictments on the language of CPL 240.70. A court faced with a party’s discovery violation is empowered by CPL 240.70 to take a number of actions, including ordering the noncompliant party “to permit discovery of the property not previously disclosed, grant a continuance, issue a protective order, prohibit the introduction of certain evidence or the calling of certain witnesses or take any other appropriate action” (CPL 240.70 [1]). In its discussions with counsel on the record, Supreme Court referred to CPL 240.70, and it appears Supreme Court concluded that it had the power to dismiss the indictments under the “any other appropriate action” language of CPL 240.70 (1).
The Legislature, however, provided the grounds upon which Supreme Court may dismiss an indictment in a different section of the Criminal Procedure Law, section 210.20. That provision provides that “[a]fter arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof’ upon a series of enumerated grounds (see CPL 210.20 [1] [a]-[i]).
The People do not argue that Supreme Court lacked the power to dismiss these indictments (see Dunn,
CPL 210.20’s catchall provision, CPL 210.20 (1) (h), empowers a court to dismiss an indictment when “[t]here exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged.” The catchall language of CPL 240.70 (1) (“or take any other appropriate action”) allows Supreme Court to exercise any other power it possesses in fashioning an appropriate remedy for a discovery violation, but it does not, in and of itself, empower Supreme Court to dismiss an indictment. As the People argue, resort to CPL 210.20 (1) (h) was necessary to effectuate dismissal.
But, defendants protest, Supreme Court never referred to CPL 210.20 (1) (h) in its written order or in its discussions with counsel on the record, thus it must be assumed that Supreme Court acted solely pursuant to CPL 240.70 in remedying the Brady violation. We cannot agree.
First, under defendants’ argument, a court could effectively insulate its own dismissal of an indictment from appellate review simply by stating erroneously that it acted in reliance on a statutory provision not listed in CPL 450.20. The absurdity of such a result is obvious (see generally People v D’Alessandro,
Second, although Supreme Court did not expressly refer to CPL 210.20 (1) (h), it is clear that the import of its order fell squarely within its terms. Supreme Court stressed in thorough discussions with counsel on the record that the magnitude of the Brady violation here, in the court’s view, was such that it would be impossible for the defendants to receive a fair trial.
Our conclusion that the People have a right to appeal the dismissal of the indictments here is not contrary to our decision in People v Hernandez (
The impossibility of a fair trial created, in Supreme Court’s view, by the Brady violation presented a “legal impediment to conviction” within the meaning of CPL 210.20 (1) (h). Thus, Supreme Court’s order was issued pursuant to CPL 210.20, and, as CPL 210.20 is among the provisions listed in CPL 450.20 (1), the People may take an appeal of the dismissal order to the Appellate Division.
Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the merits of the appeal.
Notes
. Here, there is no suggestion that Supreme Court sought to shield its order from appellate review. Indeed, immediately after Supreme Court orally announced its decision to dismiss the indictments, the record reflects that the court presumed that its order would be the subject of an appeal; it was only after additional discussion with counsel that Supreme Court learned that defendants took a different view and believed that the People could not take an appeal.
. We explained in Hernandez, too, that the legislative rationale behind not providing the People with an appeal in those circumstances is clear:
“As the legislative history of CPL 140.45 explains, in a case of an arrest under a warrant, the information or felony complaint underlying the warrant is filed with, and examined for sufficiency by, a local criminal court before the arrest, whereas, when an arrest is made without a warrant, since the arraignment is the court’s first opportunity to examine it, it should have the power to reject it on that occasion” (98 NY2d at 10 [internal quotation marks omitted]).
No analogous principle animates the Legislature’s language in CPL 240.70 (1) allowing a trial court to take “appropriate action” in the face of a discovery violation.
Dissenting Opinion
Criminal Procedure Law § 450.20 (1) authorizes the People to take an appeal as of right from “[a]n order dismissing an accusatory instrument . . . entered pursuant to section 170.30, 170.50 or 210.20.” Until now, this Court has consistently held that “[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” (People v Dunn, 4 NY3d 495, 497 [2005]; see also People v Hernandez,
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. The court’s power to dismiss under that Judiciary Law section was questionable at best, and the People argued that the order “should be deemed to have been made pursuant to CPL 330.30,” and thus appeal-able (Dunn, 4 NY3d at 497). We affirmed the Appellate Division’s dismissal of the appeal, repeating declarations made in both Hernandez and People v Laing (
Notwithstanding the almost identical argument in Dunn, the majority now holds that Supreme Court did not have the power to dismiss an indictment under CPL 240.70, and therefore it must have dismissed under CPL 210.20, making the dismissal appealable. The majority does so without distinguishing Dunn or explaining why the Court does not follow that rule here. Despite this Court’s jurisprudence, the majority converts indictments dismissed under CPL 240.70 into indictments dismissed
Here, Supreme Court dismissed the indictments pursuant to CPL 240.70, penalizing the People for a discovery violation. CPL 240.70 is not specifically enumerated in section 450.20. Because there is no express statutory authority for the People’s appeal from an order dismissing accusatory instruments pursuant to section 240.70, the People have no right to appeal under CPL 450.20 (see Hernandez,
Accordingly, I dissent and would vote to affirm the Appellate Division order.
Judges Ciparick, Graffeo, Read and Pigott concur with Chief Judge Lippman; Judge Jones dissents and votes to affirm in a separate opinion in which Judge Smith concurs.
Order reversed, etc.