People v. Rosario, 39 N.Y.2d 700 (1976)
Service of an order on the defendant’s attorney, rather than the defendant personally, triggers the commencement of the statutory period for filing an application for leave to appeal.
Summary
The New York Court of Appeals addressed whether the time to apply for leave to appeal begins when the order is served on the defendant’s attorney or when the defendant personally receives notice of the order. The court held that service on the attorney commences the 30-day period, emphasizing the attorney’s role in advising the defendant and protecting their appellate rights. The defendant’s application was dismissed as untimely because it was filed more than 30 days after the order was served on his attorney, even though the defendant’s personal receipt of notice was delayed due to circumstances outside the attorney’s control.
Facts
The Appellate Division affirmed the defendant’s judgment of conviction on June 21, 1976. A copy of the order was served on the defendant’s attorney on June 30, 1976. The attorney, already aware of the affirmance, informed the defendant of the decision via a letter addressed to the correctional facility where the defendant was previously incarcerated. Unbeknownst to the attorney, the defendant had been transferred to another facility, causing a delay in the defendant receiving the attorney’s letter. Upon receiving the letter, the defendant promptly informed his attorney of his desire to seek leave to appeal. The attorney then filed the application for leave to appeal in September 1976.
Procedural History
The defendant sought leave to appeal to the New York Court of Appeals from an order of the Appellate Division, Second Department, which had affirmed his conviction. The application for leave to appeal was made to a Judge of the Court of Appeals.
Issue(s)
Whether the 30-day period for applying for a certificate granting leave to appeal to the Court of Appeals, as prescribed by CPL 460.10(5)(a), begins to run upon service of the order on the defendant’s attorney or upon the defendant’s personal receipt of notice of the order.
Holding
No, because the service on the attorney fulfills the notice function contemplated by the statute, and the attorney is obligated to advise the defendant of their appellate rights and act accordingly.
Court’s Reasoning
The court reasoned that CPL 460.10(5)(a) requires an application for leave to appeal within 30 days after service of the order sought to be appealed. While the statute refers to service “upon the appellant,” the court emphasized that the purpose of service in this context is to provide notice, not to acquire jurisdiction. Service on the attorney effectively accomplishes the notice function because the attorney’s representation of the defendant continues through the filing of a timely application for leave to appeal. The court cited 22 NYCRR 606.5(a)(2), 671.2(b), 821.1(b), 1022.11(b), which outline the attorney’s obligations to advise the defendant of their appellate rights and file an application for leave to appeal if the defendant wishes to do so. The court stated, “As a practical matter it may be observed that in most instances service on the attorney would be better calculated to result in protection of the defendant’s interests than would service on the defendant himself.” The court explicitly did not address the scenario where the defendant is served personally before service on the attorney, leaving open the question of whether that earlier service would trigger the appeal period.