People v. Holland

The People of the State of New York, Respondent, v. David Holland, Appellant

962 N.E.2d 261, 18 N.Y.3d 840, 938 N.Y.S.2d 839, 2011 NY Slip Op 9164 • 2011-12-20

Citation962 N.E.2d 261, 18 N.Y.3d 840, 938 N.Y.S.2d 839, 2011 NY Slip Op 9164

Date Filed2011-12-20

Docket236

JudgeLippman (Dissenting)

Cited6 times

StatusPublished

Attorneys

APPEARANCES OF COUNSEL, Legal Aid Society, Criminal Appeals Bureau, New York City (Arthur H. Hopkirk, Justin Diamant and Steven Banks of counsel), for appellant., Cyrus R. Vance, Jr., District Attorney, New York City (William Mahoney, Alan Gadlin and Joseph Davis of counsel), for respondent.

Full Opinion (html_with_citations)

OPINION OF THE COURT

Memorandum.

The appeal should be dismissed upon the ground that the reversal by the Appellate Division (74 AD3d 520 [1st Dept 2010]) was not on the law alone within the meaning of CPL 450.90 (2) (a).*

Here, the Appellate Division’s reversal of Supreme Court’s order granting suppression, while termed “on the law,” was actually predicated upon a differing view concerning the issue of attenuation, which is a mixed question of law and fact. A reversal *842on a mixed question typically does not meet the requisites of CPL 450.90 (2) (a) (see People v Mayorga, 64 NY2d 864, 865 [1985] [dismissing an appeal from an Appellate Division order of reversal involving mixed question of whether “there has been an attenuating break in an interrogation”]; People v Lawrence, 74 NY2d 732 [1989]; People v Howard, 74 NY2d 943 [1989]; People v Hinton, 81 NY2d 867 [1993]).

Pursuant to CPL 450.90 (2) (a), this Court may entertain an appeal from an order of an intermediate appellate court reversing an order of a criminal court only if it “determines that the intermediate appellate court’s determination of reversal . . . was on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal.”