Senate Bill S5653

                                BILL NUMBER:S5653

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to criminal appeals

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Criminal Law and Procedure.

This measure would amend the Criminal Procedure Law to allow an
appellate court, on appeal from a judgment, sentence or order of a
criminal court, to consider and determine any question of law
presented to or considered by the trial court, despite the trial court
not having decided the question adversely to the appellant.

In People v LaFontaine, 92 NY2d 470 (1998), the Court of Appeals held
that CPL 470.15(1) does not allow an intermediate appellate court to
affirm a judgment where the court below made the right ruling, but did
so for the wrong reason. LaFontaine involved an appeal of a motion to
suppress where the prosecution argued several alternative legal
theories to support the police search of defendant's premises.  The
trial court accepted one of those grounds but rejected the others. On
appeal, the Appellate Division held that the trial court's legal
reasoning was in error, but affirmed the conviction because an
alternative ground argued by the people was, in its opinion, legally
correct. On further appeal, the Court of Appeals held that the
              

intermediate appellate court was wrong to reach a ground rejected by
the trial court, even though the prosecutor fully set forth that legal
ground in the trial court record. Instead, the Court determined that
the trial court's rejection of the ground argued by the people was not
adverse to the appellant-defendant and thus was not the proper subject
of appeal. The only appropriate action was for the appellate court to
remit the case back to the trial court for further proceedings. The
Court clearly understood that this resulted in a needless waste of
judicial resources, but stated that this "anomaly rests on unavoidable
statutory language," and that "any modification would be for the
Legislature to change" (id. at 475).

In the years immediately following the LaFontaine decision, and
perhaps because of its unusual procedural posture, the ruling was
rarely applied. More recently, however, the Court has reaffirmed that
CPL 470.15(1) must be strictly construed (People v Concepcion, 17 NY3d
192 (2011)). The result has led to numerous cases being remitted back
to the trial court so that a proper record can be made on which to
appeal (see e.g., People v Yusuf, 19 NY3d 314 (2012); People v Ingram,
18 NY3d 949 (2012); People v Schrock, 99 AD3d 1196 (4th Dept 2012);
People v Spratley, 96 AD3d 1420 (4th Dept 2012); People v Santiago, 91
AD2d 438 (1st Dept 2012)).

We recommend that CPL 470.15(1) be amended to permit an appellate
court to consider alternative grounds raised or considered by the
trial court, even where the court did not ultimately decide the
question of law adversely to the appellant. While this measure
therefore enlarges the scope of questions of law that an intermediate
appellate court may consider, it continues the current prohibition
that an intermediate appellate court may not determine grounds either
not raised or not considered in the trial court. By narrowly tailoring


the measure to overcome the procedural barrier recognized in
LaFontaine, the measure will eliminate the inevitable waste of
judicial resources encountered when cases are remitted for the trial
court solely to make an appropriate record upon which a further appeal
can be taken.

This act shall take effect immediately, and shall apply to all
criminal actions pending on or after such date.

Legislative History: None. New proposal.