Summary
affirming dismissal of an appeal where the People filed an affidavit of errors instead of a notice of appeal as required
Summary of this case from People v. BartholomewOpinion
Decided April 28, 1987
Appeal from the Sullivan County Court, Eugene M. Hanofee, J., Joel Welsh, J.
Stephen F. Lungen, District Attorney (Frank J. Labuda of counsel), for appellant.
John M. Diuguid for respondent.
MEMORANDUM.
The order of the County Court should be affirmed.
Defendant was arrested and charged with driving while intoxicated and speeding. A Huntley hearing was held before a Village Justice and on April 28, 1986 the DWI charge was dismissed. The People attempted to appeal that decision to County Court on May 28, 1986 by sending an affidavit of errors, the stenographic transcript, and a memorandum of law to the chambers of a County Court Judge. They were transmitted to the court clerk on June 3, 1986. Thereafter, on defendant's motion, the appeal was dismissed for failure to timely file a notice of appeal.
It is undisputed that the underlying proceedings in the Village Court were stenographically recorded and transcribed. Thus, the People were required to follow the provisions of CPL 460.10 (2) on their appeal to the County Court. The filing of an affidavit of errors, the stenographic transcript and a memorandum of law with the Judge's chambers of the County Court did not comply with the mandate of CPL 460.10 (2) which specifically requires the filing of a notice of appeal with the local criminal court from which the appeal is taken.
Contrary to the People's assertion, CPL 460.10 (6) would not excuse their noncompliance with the statute. That section provides that an appellate court may, in the interest of justice, deem a notice of appeal, an affidavit of errors, or an application for leave to appeal valid when it is premature or when it contains "an inaccurate description of the judgment, sentence or order being or sought to be appealed". It also allows an appellate court to order service of process on a respondent who, through inadvertence, has not been previously served, but only "[w]here an appellant files a notice of appeal within the prescribed period". Because appellant raises no issue concerning premature papers or inaccurate descriptions of the "judgment, sentence or order" and because a notice of appeal was not filed within the prescribed period, CPL 460.10 (6) is inapplicable.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.