People v Rileyn

People etc. v Louis Riley

Motion No: 2012-797

Slip Opinion No: 2012 NY Slip Op 08674

Decided on December 18, 2012

Court of Appeals Motion Decision

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This motion is uncorrected and subject to revision before publication in the Official Reports.

The People etc.,

Appellant-Respondent,

v

Louis Riley,

Respondent-Appellant.

Motion for reargument granted and, upon reargument, the decision of June 28, 2012 adhered to. CPL 470.15 (4) (a) and (b) do not eliminate the necessity of preservation in the trial court to challenge legal sufficiency of the evidence on appeal (People v Gray, 86 NY2d 10, 20 [1995]). Moreover, contrary to the contention the People press upon reargument, CPL 470.15 (4) (b) does not alter, for issues of legal sufficiency of the evidence, the well-settled rule that an order reversing or modifying on an unpreserved issue is an exercise of discretion in the interest of justice and not appealable to this Court (CPL 450.90 [2] [a];seePeople v Bonilla-Lugo, 85 NY2d 965 andPeople v Christian, 85 NY2d 965 [decided the same day as People v Gray, supra]). The People's appeal in this case was properly dismissed.

Chief Judge Lippman and Judges Ciparick, Graffeo and Read concur.

Judges Smith and Pigott dissent in part and, upon reargument, vote to retain the People's appeal for the reasons stated in Judge Pigott's dissenting in part opinion of June 28, 2012 and upon the further reason that the modification by the Appellate Division, on an unpreserved issue of legal sufficiency of the evidence, should be deemed to be upon the law (CPL 450.15 [4] [b]) and appealable by the People (CPL 450.90 [2] [a]).