People v. Dercole

Feb 12, 1981
Versions:52 N.Y.2d 956
419 N.E.2d 869
437 N.Y.S.2d 966
1981 N.Y. LEXIS 2203

*957OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

The Appellate Division’s determination to reverse did not satisfy the jurisdictional predicate that it be made on the law alone or on the law and such facts which, except for the determination of law, would not have led to the reversal (CPL 450.90, subd 2). Although the order states that the reversal is on the law, the opinion reveals that it was based on the asserted repugnancy of the trial court’s verdicts, to which timely objection had not been taken.

As we made clear in People v Johnson (47 NY2d 124), a reversal by the Appellate Division based on claimed trial error to which objection is not taken presents no questions of law for appellate review in this court (see CPL 470.05, subd 2). We also gave expression to this principle in People v Cona (49 NY2d 26, 33-34) where, confronted with an Appellate Division conclusion as a matter of law that there had been preservation despite failure to object, we held, citing to Johnson (supra), that our review could proceed no further than reversal on that singular point of law and remittal to the Appellate Division to decide whether it was appropriate to treat the question within the exercise of its discretion.

In view of the dismissal thus mandated, this court, of course, has not reached the merits. It therefore goes without saying that our disposition does not reflect indorsement of the rulings contained in the opinion below (see Panico v Young, 46 NY2d 847).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Appeal dismissed in a memorandum.