N.Y. Criminal Procedure Law § 470.35: Determination by court of appeals of appeals from orders of intermediate appellate courts; scope of review

§ 470.35 Determination by court of appeals of appeals from orders of

intermediate appellate courts; scope of review.

1. Upon an appeal to the court of appeals from an order of an

intermediate appellate court affirming a judgment, sentence or order of

a criminal court, the court of appeals may consider and determine not

only questions of law which were raised or considered upon the appeal to

the intermediate appellate court, but also any question of law involving

alleged error or defect in the criminal court proceedings resulting in

the original criminal court judgment, sentence or order, regardless of

whether such question was raised, considered or determined upon the

appeal to the intermediate appellate court.

2. Upon an appeal to the court of appeals from an order of an

intermediate appellate court reversing or modifying a judgment, sentence

or order of a criminal court, the court of appeals may consider and

determine:

(a) Any question of law which was determined by the intermediate

appellate court and which, as so determined, constituted a basis for

such court's order of reversal or modification; and

(b) Any other question of law involving alleged or possible error or

defect in the criminal court proceedings resulting in the original

judgment, sentence or order which may have adversely affected the party

who was appellant in the intermediate appellate court and who is

respondent in the court of appeals. The court of appeals is not

precluded from considering and determining such a question by the

circumstance that it was not considered or determined by the

intermediate appellate court, or that it did not constitute a basis for

such court's reversal or modification, or that the party who may have

been adversely affected thereby is the respondent rather than the

appellant in the court of appeals; and the court of appeals, even though

rejecting the intermediate appellate court's reasons for its order of

reversal or modification, may affirm or modify such order upon the basis

of such other questions; and

(c) Any question concerning the legality of the corrective action

taken by the intermediate appellate court.

3. Upon such an appeal, the court must affirm, reverse or modify the

intermediate appellate court order.