Opinion · New York Court of Appeals

People v. Karp

76 N.Y.2d 1006

Type
Opinion
Court
New York Court of Appeals
Jurisdiction
New York
Date
1990-12-27
Topic
general

OPINION OF THE COURT Memorandum. The order of the Appellate Division should be reversed and the indictment reinstated. We agree with so much of the dissenting opinion of Justice Joseph P. Sullivan (158 AD2d 378, 385) as concluded that the questioning of the defendant before the Grand Jury was neither "overly vigorous” nor prevented the defendant from "fully and fairly testifying” (see, CPL 190.50 [5]). Inasmuch as the Supreme Court dismissal of the indictment was solely on the ground of the prosecutor’s improper questioning of the defendant, the Appellate Division lacked the power to consider issues relating to the District Attorney’s failure to instruct the Grand Jury on the defense of justification and prejudicially exercising prosecutorial discretion in charging the defendant.

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49 opinions
PEOPLE v. KARP,76 N.Y.2d 1006(1990)
THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. JULES KARP, Respondent.
Court of Appeals of the State of New York.
Argued November 16, 1990
Decided December 27, 1990
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Dorothy Cropper, J.Page 1007
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 1008
Robert M. Morgenthau, District Attorney (Beth J. ThomasandMark Dwyerof counsel), for appellant.Lennox S. Hindsfor respondent.
MEMORANDUM.

The order of the Appellate Division should be reversed and the indictment reinstated.

We agree with so much of the dissenting opinion of Justice Joseph P. Sullivan (158 A.D.2d 378,385) as concluded that the questioning of the defendant before the Grand Jury was neither "overly vigorous" nor prevented the defendant from "fully and fairly testifying"(see,CPL190.50[5]).

Inasmuch as the Supreme Court dismissal of the indictment was solely on the ground of the prosecutor's improper questioning of the defendant, the Appellate Division lacked the power to consider issues relating to the District Attorney's failure to instruct the Grand Jury on the defense of justification and prejudicially exercising prosecutorial discretion in charging the defendant. As stated by this Court inPeople vPage 1009Goodfriend(64 N.Y.2d 695,698), "[t]he CPL, however, limits the Appellate Division's review to `any question of law or issue of fact involving error or defect in the criminal court proceedingswhich may have adversely affected the appellant.'(CPL470.15, subd 1 [emphasis added].)" Thus, on the People's appeal, the Appellate Division was without power to consider defendant's alternative arguments for affirmance.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.

Order reversed, etc.