People v. James

206 A.D.2d 243, 621 N.Y.S.2d 298, 1994 N.Y. App. Div. LEXIS 13119

Opinion

OPINION OF THE COURT

Wallach, J.

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 AD2d 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 NY2d 773; People v Williams, 342 NYS2d 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 NYS2d 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 NY2d 940).

The application is denied.

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.