N.Y. Criminal Procedure Law § 470.40: Determination by court of appeals of appeals from intermediate appellate courts; corrective action upon reversal or modification

§ 470.40 Determination by court of appeals of appeals from intermediate

appellate courts; corrective action upon reversal or

modification.

1. Upon reversing or modifying an order of an intermediate appellate

court affirming a criminal court judgment, sentence or order, the court

of appeals must take or direct such corrective action as the

intermediate appellate court would, pursuant to section 470.20, have

been required or authorized to take or direct had it reversed or

modified the criminal court judgment, sentence or order upon the same

ground or grounds.

2. Upon reversing an order of an intermediate appellate court

reversing or modifying a criminal court judgment, sentence or order upon

the ground that questions of law were erroneously determined by the

intermediate appellate court in favor of the party appellant therein,

the court of appeals must take or direct corrective action as follows:

(a) If the facts underlying the original criminal court judgment,

sentence or order were considered and determined to have been

established by the intermediate appellate court, the court of appeals

must reinstate and affirm the original criminal court judgment, sentence

or order and remit the case to such criminal court for whatever further

proceedings may be necessary to complete the action or proceedings

therein; provided, however, that where such facts were applied to an

erroneous determination of law, the court of appeals may remit the case

to the intermediate appellate court for a further determination of the

facts;

(b) If the facts underlying the original criminal court judgment,

sentence or order were not, or are presumed not to have been, considered

and determined by the intermediate appellate court, the court of appeals

must remit the case to such intermediate appellate court for

determination of the facts.

3. Upon modifying an intermediate appellate court order reversing or

modifying a criminal court judgment or order, upon the ground that

corrective action taken or directed by the intermediate appellate court

was illegal, the court of appeals must either (a) itself take or direct

the appropriate corrective action or (b) remit the case to the

intermediate appellate court for appropriate corrective action by the

latter.