MEMORANDUM The appeal should be dismissed, by the Court sua sponte, upon the ground that the modification by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to…modification” (CPL 450.90[2][a]). “[A]n Appellate Division reversal [or modification] based on an unpreserved error is considered an exercise of the Appellate Division’s interest of justice power” (People v. Riley, 19 NY3d 944, 946 [2012] adhered to on reargument 20 NY3d 980 [2012]). Moreover, the Appellate Division’s characterization of its own holding (i.e., “on the law” or “on the facts”) is not binding; in determining jurisdiction, we look behind that characterization to discern the basis of the ruling (see People v. D’Alessandro, 13 NY3d 216, 218-219 [2009]). For example, in Riley, we dismissed the People’s appeal on the ground that the Appellate Division’s order of reversal was predicated on an unpreserved challenge to the legal sufficiency of the evidence (Riley, 20 NY3d 980), even though the Appellate Division stated that the verdict was “against the weight of the evidence” (85 AD3d 431, 432 [1st Dept 2011]). Here, it is undisputed that, in vacating the first-degree robbery count (without disturbing the second-degree robbery convictions [Penal Law §§160.10(1), (2)(a)]), the Appellate Division relied upon an unpreserved argument concerning the proper interpretation of and minimum proof required to establish the weapon display element of the first-degree offense (see Penal Law §160.15[4]). As we have repeatedly recognized, for jurisdictional purposes an unpreserved issue of this nature does not present a question of law. Thus, the Appellate Division determination — the basis of the order of modification — was not “on the law alone” but was necessarily made as a matter of discretion in the interest of justice (see Riley, 19 NY3d at 946-947; People v. Fava, 58 NY2d 807 [1983]; People v. Johnson, 47 NY2d 124 [1979]; People v. Williams, 31 NY2d 151 [1972]). The People’s reliance on People v. Kancharla (23 NY3d 294 [2014]) is misplaced because no threshold preservation concern was presented in that case and, as such, the dispositive legal argument underlying the Appellate Division’s interrelated sufficiency and weight of the evidence determinations presented an “issue of law,” resulting in an appealable order and permitting review by this Court.
