Summary
holding that “[t]here is simply no statutory authority in our criminal procedure for review by the Court of Appeals of an Appellate Division order refusing permission to appeal to this Court” and noting that “[v]irtually all the cases citing this rule have involved applications under [N.Y.C.P.L. § 450.90].”
Summary of this case from Walker v. GrahamOpinion
December 27, 1994
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department.
Ronnie James, appellant pro se. Rona Feinberg of counsel, New York City (Robert M. Morgenthau, District Attorney of New York County, attorney), for respondent.
This is an application for leave to appeal to the Court of Appeals from an Appellate Division order which denied permission to appeal a coram nobis ruling to this Court.
Defendant was convicted in 1989 of robbery in the first and second degrees and criminal possession of a weapon in the second and third degrees, and was sentenced to concurrent terms of imprisonment aggregating 9 to 18 years. That judgment was unanimously affirmed by this Court in 1993 ( 196 A.D.2d 747). A motion to vacate the judgment was denied by the Trial Judge in April 1994, and an application for leave to appeal that order was denied in this Court on August 11. Defendant now seeks leave to appeal the August 11 order to the Court of Appeals.
No appeal lies from an order denying a motion for leave to appeal to the Appellate Division (People v. Adams, 82 N.Y.2d 773; People v. Williams, 342 N.Y.S.2d 75 [App. Div., 2d Dept]). There is simply no statutory authority in our criminal procedure for review by the Court of Appeals of an Appellate Division order refusing permission to appeal to this Court (People v. Brock, 332 N.Y.S.2d 110 [App. Div., 1st Dept]; see also, Guyton v. LeFevre, 560 F. Supp. 1237, 1242).
Virtually all the cases citing this rule have involved applications under the Criminal Procedure Law (CPL 450.90). Defendant has tried a different approach, couching his application in the general provisions of CPLR 5602 (a) (1) (i) (appeal by permission from "an order of the appellate division which finally determines the action and which is not appealable as of right"). However, no civil appeal lies to the Court of Appeals from an Appellate Division order entered in a criminal proceeding (Matter of Downs v. Maher, 78 N.Y.2d 940).
The application is denied.
WALLACH, J.
Application for leave to appeal to the Court of Appeals from an order of this Court which denied permission to appeal a coram nobis ruling to this Court denied.