New York Criminal Procedure Law Section 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.

Last modified: February 3, 2019