Kenneth R. Bruno, District Attorney of Rensselaer County (
Daniel Hanlon of counsel), for respondent.
Timothy Nugent for appellant.
OPINION OF THE COURT
PATRICK J. McGRATH, J. The People bring a motion to have defendant's appeal dismissed. other than by indictment, such as the case at bar. (People v Omans, 306 NY 375, 377-378, supra.) Section 524-a is in no way applicable to procedures provided for in part V. (Id.) Simply put, section 524-a, were it still in existence, would not be applicable to the case at bar. But section 524-a is more significant here than the observation made immediately above. The Criminal Procedure Law, promulgated September 1, 1971, consolidated the appellate rules for the lower and higher trial courts into CPL 460.10 and eliminated the broad discretion allowed Judges in section 524-a. In its place, the appellate courts, including this one, have discretion in specific situations only. CPL 460.10 (6) states: "6. Where a notice of appeal, an affidavit of errors, an application for leave to appeal to an intermediate appellate court, or an application for leave to appeal to the court of appeals is premature or contains an inaccurate description of the judgment, sentence or order being or sought to be appealed, the appellate court, in its discretion, may, in the interest of justice, treat such instrument as valid. Where an appellant files a notice of appeal within the prescribed period but, through mistake, inadvertence or excusable neglect, omits to serve a copy thereof upon the respondent within the prescribed period, the appellate court to which the appeal is sought to be taken may, in its discretion and for good cause shown, permit such service to be made within a designated period of time, and upon such service the appeal is deemed to be taken." And CPL 460.30 (1) states, in part, that the time to appeal may be extended, upon motion of the defendant:
"[U]pon the ground that the failure to so file or make application in timely fashion resulted from (a) improper conduct of a public servant or improper conduct, death or disability of the defendant's attorney, or (b) inability of the defendant and his attorney to have communicated, in person or by mail, concerning whether an appeal should be taken, prior to the expiration of the time within which to take an appeal due to the defendant's incarceration in an institution and through no lack of due diligence or fault of the attorney or defendant. Such motion must be made with due diligence after the time for the taking of such appeal has expired, and in any case not more than one year thereafter."
If defendant's error is not one contemplated under these subdivisions, and it clearly doesn't fall under CPL 460.10 (6),
the letter as such. In attempting to explain this case, a treatise stated, "Defendant's Notice, if he appeals as a poor person, can be treated with some informality" (6 Zett, NY Crim Prac ¶ 53.9 [1], at 53-50). Based on the court's research, the
Lee case was never cited by any later case. The only rationale for the ruling is that the court ignored the requirement of strict compliance based upon the appellant's
pro se poor person status. (
See also People v Smith, 11 NY2d 933.) Such is not the case on the present appeal. The court finds that defendant's failure to serve the notice of appeal as mandated by CPL 460.10 (1) (a) is a fatal defect in the taking of the appeal and the appeal must be dismissed. The court acknowledges that its decision deprives defendant of the opportunity to have his appeal heard on the merits. Certainly this court would prefer a resolution of the appeal on the merits. However, the current state of the law does not allow it. It is up to the Legislature or Court of Appeals to decide whether discretion should be expanded to the lower appellate courts to be able to address minor omissions such as the one in the case at bar. Based upon all of the above, "the court must grant the [People's] motion and dismiss the appeal." (
People v Duggan, 132 Misc 2d 627, 629 [Sullivan County Ct 1986],
affd 69 NY2d 931,
supra; Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637.)