New York Law Review

Tag: Timeliness of Appeal

  • People v. Zerbo, 83 N.Y.2d 903 (1994): Necessity of Service by Prevailing Party to Start Appeal Period

    People v. Zerbo, 83 N.Y.2d 903 (1994)

    Under CPL 460.10, the time period for filing a notice of appeal commences only after the prevailing party serves a copy of the order on the other party.

    Summary

    This case addresses whether service by the prevailing party is necessary to trigger the time period for the other party to file an appeal under CPL 460.10. The Court of Appeals holds that it is, requiring prevailing party service to commence the appeal period. In this case, the trial court dismissed an indictment against the defendant. The Appellate Division reversed, but the Court of Appeals affirmed, finding that because there was no evidence of service of the trial court’s order on the People, the People’s appeal to the Appellate Division was timely, even though filed more than 30 days after the order.

    Facts

    A Grand Jury indicted the defendant for criminal possession of a weapon. The trial court granted the defendant’s motion to dismiss the indictment, finding the evidence before the Grand Jury legally insufficient because no evidence was presented regarding the defendant’s possession or lack of possession of a license for the weapon.

    Procedural History

    The trial court granted the defendant’s motion to dismiss the indictment. The Appellate Division reversed the trial court’s decision. The defendant appealed to the Court of Appeals, arguing that the People’s appeal to the Appellate Division was untimely.

    Issue(s)

    Whether, under CPL 460.10, service by the prevailing party (here, the defendant at the trial level) is required to commence the time period for the other party (here, the People) to take an appeal.

    Holding

    Yes, because CPL 460.10(1)(a) requires service of the order by the prevailing party to commence the time period for filing a notice of appeal.

    Court’s Reasoning

    The Court of Appeals interpreted CPL 460.10(1)(a), which states that a party seeking to appeal from an order of a criminal court must file a notice of appeal within thirty days after service upon such party of a copy of the order. The court construed this provision to require prevailing party service in order to commence the time for filing a notice of appeal, citing People v. Wooley, 40 N.Y.2d 699. Because there was no evidence presented as to when, or even if, the defendant (the prevailing party in the trial court) served the order on the People, the court concluded that the People’s notice of appeal was timely, as the 30-day period was never triggered. The court emphasized that without evidence of service by the prevailing party, the appellate timeline does not begin. The court noted, “We construe this provision to require prevailing party service in order to commence the time for filing a notice of appeal.” This interpretation ensures that the appealing party has clear notice of the order before the appeal period begins.

  • People v. D’Alessandro, 73 N.Y.2d 214 (1989): Sufficiency of Indictment – Factual Allegations and Timeliness of Appeal

    People v. D’Alessandro, 73 N.Y.2d 214 (1989)

    An indictment is sufficient if it contains factual allegations affording the accused notice of the charges to allow for adequate defense preparation and contains a plain and concise statement of the factual elements constituting the charged crime.

    Summary

    The New York Court of Appeals addressed the sufficiency of an indictment and the timeliness of the People’s appeal. The court held that the indictment, which used the word “handgun” to describe the weapon used in the robbery, provided sufficient factual support for the charges of robbery and criminal use of a firearm. The court also determined that the People’s appeal was timely because it was filed within 30 days of the Supreme Court’s superseding order, which reaffirmed its prior decision after reargument. The court used this opportunity to urge the legislature to clarify an ambiguity in CPL 460.10.

    Facts

    Defendant was indicted on multiple counts, including robbery and criminal use of a firearm. Each of these counts referenced a “handgun”. The trial court dismissed four counts of the indictment. The People moved for reargument, but the Supreme Court adhered to its original decision. The People then appealed to the Appellate Division, which reversed the trial court’s dismissal.

    Procedural History

    The Supreme Court initially dismissed four counts of the indictment. The People’s motion for reargument was denied, with the Supreme Court adhering to its prior decision. The People appealed to the Appellate Division, which reversed the Supreme Court’s dismissal. The defendant appealed to the Court of Appeals.

    Issue(s)

    1. Whether the indictment provided sufficient factual support for the charges of robbery and criminal use of a firearm by using the word “handgun.”
    2. Whether the People’s appeal to the Appellate Division was timely, given that it was filed within 30 days of the Supreme Court’s order adhering to its original decision after reargument.

    Holding

    1. Yes, because the term “handgun” constituted sufficient factual support for the element of the crimes charged as well as a sufficient description of the implement allegedly displayed by the defendant.
    2. Yes, because the Supreme Court’s order granting the People’s motion for reargument and adhering to its prior decision was a superseding order, making the People’s notice of appeal timely.

    Court’s Reasoning

    Regarding the sufficiency of the indictment, the Court of Appeals found that using the term “handgun” provided adequate factual support for the charges. The court referenced CPL 200.50 [7] [a] and [b], which outlines the requirements for the content of an indictment, and emphasized that “handgun” sufficiently described the implement allegedly displayed by the defendant. The court reasoned that the indictment provided the defendant with adequate notice of the charges against him, enabling him to prepare a defense.

    Regarding the timeliness of the appeal, the court determined that the Supreme Court’s order upon reargument, which reaffirmed its initial decision, constituted a superseding order. Citing prior case law (People v Collier, 131 AD2d 864; Marine Midland Bank v Fisher, 85 AD2d 905) and a practice treatise (Siegel, NY Prac §254), the court clarified that a superseding order restarts the time to appeal. Therefore, the People’s appeal, filed within 30 days of the superseding order, was timely.

    The court took the opportunity to “invite the attention of the Legislature to an apparent ambiguity in CPL 460.10,” reiterating a concern previously expressed in People v Coaye, 68 NY2d 857, 858.

  • Matter of Will of Gershenoff, 28 N.Y.2d 495 (1971): Determining When the Time to Appeal Begins

    Matter of Will of Gershenoff, 28 N.Y.2d 495 (1971)

    When a party submits a proposed judgment that requires a request for entry, the time to appeal does not begin until service of the judgment with notice of entry, even if the proposed judgment was initially submitted by the appealing party.

    Summary

    This case addresses the timeliness of an appeal under CPLR 5513(a). The appellant submitted a proposed counter-judgment, which the court signed. However, the respondents requested and filed the judgment with the County Clerk. The appellant served a notice of appeal more than 30 days after the judgment was filed, but within 30 days of being served with notice of entry. The Court of Appeals held that because the judgment required a specific request for entry, the appellant’s time to appeal did not begin until they were served with a copy of the judgment and notice of entry, thus the appeal was timely.

    Facts

    In an Article 78 proceeding, Special Term directed that an “order be settled.” The respondents submitted a proposed judgment, and the appellant submitted a proposed counter-judgment. The Special Term Judge signed the appellant’s proposed counter-judgment on May 29, 1968. On June 13, 1968, the respondents filed the signed judgment in the County Clerk’s office at their own request. On July 17, 1968, the appellant was served by mail with a copy of the judgment with notice of entry. The appellant served a notice of appeal to the Appellate Division on the same date.

    Procedural History

    The respondents moved to dismiss the appeal, arguing that the appellant’s time to appeal expired 30 days after the judgment was filed. The Appellate Division granted the motion to dismiss the appeal, concluding that it was untimely. The appellant appealed to the New York Court of Appeals by leave of the court.

    Issue(s)

    Whether the appellant’s time to appeal began when the respondents filed the appellant’s proposed counter-judgment, or when the appellant was served with a copy of the judgment and notice of entry.

    Holding

    No, because the judgment required a specific request for entry; the appellant’s time to appeal did not begin until service of the judgment with notice of entry.

    Court’s Reasoning

    The Court of Appeals considered CPLR 5513(a), which states that an appeal must be taken within thirty days after service of the judgment or order appealed from with written notice of its entry, “except that when the appellant has entered the judgment or order or served notice of its entry his appeal must be taken within thirty days after he did either.” The court distinguished this case from prior cases, like People ex rel. Manhattan Stor. & Warehouse Co. v. Lilly, where the entry of a counter-order submitted by the appellant was attributed to the appellant because the order was “automatically” entered without any further action. The court reasoned that in this case, the proposed judgment required one of the parties to request that it be entered. Therefore, the court held that because the respondent requested the judgment be entered, the appellant’s time to appeal did not begin until service of the judgment with notice of entry had been made. The court emphasized the importance of determining the specific procedure followed in the county where the determination was rendered, given the lack of uniformity in the entry of judicial decrees.