People v Riley, 20 NY3d 980 (2012)

2012 NY Slip Op 08674 [20 NY3d 980]
December 18, 2012
Court of Appeals

[*1]

In the Matter of The People of the State of New York, Appellant-Respondent,
v
Louis Riley, Respondent-Appellant.

Submitted July 16, 2012; decided December 18, 2012

People v Riley, 19 NY3d 944, reargument granted.

{**20 NY3d at 981} OPINION OF THE COURT

Motion for reargument granted and, upon reargument, the decision of June 28, 2012 adhered to (see 19 NY3d 944 [2012]). 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{**20 NY3d at 982} discretion in the interest of justice and not appealable to this Court (CPL 450.90 [2] [a]; see People v Bonilla-Lugo, 85 NY2d 965 [1995], and People v Christian, 85 NY2d 965 [1995] [decided the same day as People v Gray]). The People’s appeal in this case was properly dismissed.

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo and Read.

Smith, J. and Pigott, J. (dissenting). 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 (19 NY3d 944, 947 [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 470.15 [4] [b]) and appealable by the People (CPL 450.90 [2] [a]).