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1
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OPINION
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EXTRACTED KEY WORDS
APPEALS COURT DEFENDANT APPELLATE DIVISION ADVERSE POSSESSION CPL PARTY JUDGEMENT WEAPON CONVICTION REVERSING CORRECTIVE ACTION SUBDIVISION JUDGE RESPONDENT LAW OPINION YORK CURIAM CHARGES GUNS LEGALITY GUILTY OFFENSE CONTENDS PARTIALLY ADVERSE SUBD CONJUNCTION |
THE PEOPLE &C., RESPONDENT, v. JESSE JACKSON, APPELLANT.
80 N.Y.2d 112, 602 N.E.2d 1116, 589 N.Y.S.2d 300 (1992).
October 20, 1992
1 No. 176
Decided October 20, 1992
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
E. Joshua Rosenkranz, for Appellant.
Leonard I. Picker, for Respondent.
PER CURIAM:
Defendant was charged, along with two co-defendants, with second
degree murder and four counts of criminal possession of a weapon in
the third degree. The possession counts involved four different
weapons. The jury convicted him of one of the weapons counts and
acquitted him of the other charges. The Appellate Division reversed on
the law and as a matter of discretion in the interest of justice.
Labelling defendant's conviction as "duplicitous", the court noted
that because the four counts of weapon possession were all identically
worded, it was impossible to determine which of the four guns
defendant was convicted of possessing. Accordingly, it ordered a new
trial.
Defendant now seeks to appeal the legality of the corrective action
ordered by the Appellate Division. He asserts that it is impossible to
determine which gun he was found guilty of possessing and, therefore,
a new trial will necessarily violate his right not to be put in
jeopardy twice for the same offense because, on retrial, he may be
found guilty of an offense of which he has already been
acquitted.(n 1) He contends that this Court has the power, under
CPL 450.90(2)(b), to review the legality of the corrective action
ordered by the Appellate Division.
CPL 450.90 sets forth the circumstances in which a party may appeal an
intermediate appellate court order to the Court of Appeals. Defendant
rests his right to appeal on subdivision 2(b), which states that an
appeal may be taken from an Appellate Division order reversing or
modifying a judgment or order of a criminal court if "(t)he appeal is
based upon a contention that corrective action ... taken or directed
by the intermediate appellate court was illegal."
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