Summary
holding that "service by the prevailing party is necessary under CPL 460.10 in order to commence the time period for the other party to take an appeal"
Summary of this case from Bennett v. ArtuzOpinion
Argued September 19, 1995
Decided October 19, 1995
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Richard Lee Price, J.
Richard A. Mastrocola, New York City, and Philip L. Weinstein for appellant.
Robert T. Johnson, District Attorney of Bronx County, Bronx (Stuart P. Levy, Joseph N. Ferdenzi and Billie Manning of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
This appeal presents a question left open in People v Singleton ( 72 N.Y.2d 845, 847): whether service by the prevailing party is necessary under CPL 460.10 in order to commence the time period for the other party to take an appeal. We conclude that it is.
Here, a Grand Jury indicted defendant for the crimes of criminal possession of a weapon in the third degree (Penal Law § 265.02) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). The trial court granted defendant's motion to dismiss on the ground that the evidence before the Grand Jury was legally insufficient since no evidence was presented concerning defendant's possession or lack of possession of a license. The Appellate Division reversed, concluding that evidence concerning a license was unnecessary.
The sole issue before us is the timeliness of the People's appeal to the Appellate Division. The People filed their appeal on March 1, 1993, more than 30 days after the trial court's order of January 21, 1993. CPL 460.10 (1) (a) states that "[a] party seeking to appeal from * * * an order of a criminal court, not included in a judgment, must * * * within thirty days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court * * * in which such order was entered a written notice of appeal". We construe this provision to require prevailing party service in order to commence the time for filing a notice of appeal. (See, People v Wooley, 40 N.Y.2d 699; Dobess Realty Corp. v City of New York, 79 A.D.2d 348, 352, appeal dismissed 53 N.Y.2d 1054.) Here no evidence was presented as to the date on which the defendant, the prevailing party in the trial court, served the order on the People and, in fact, no evidence was presented that there was such service.
Since there was no indication of service, the People's notice of appeal was timely.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed in a memorandum.