Provides on appeal an intermediate court may consider any question of law or issue of fact raised on appeal that was presented to be considered by the criminal court

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.