People v. Kennedy

152 Misc. 784, 274 N.Y.S. 878, 1934 N.Y. Misc. LEXIS 1743

• Court: New York County Courts
• Decided: September 10, 1934
• Status: Published

Opinion

Golding, J.

Defendant was convicted before a justice of the peace for violation of Vehicle and Traffic Law of this State, of driving an automobile while intoxicated. The certificate of conviction filed by the justice with the clerk shows he was fined twenty-five dollars, which he paid. Defendant in his affidavit states he pleaded guilty, was sentenced to fifteen days in a county jail, and was taken to jail and released same day, the court having changed his mind, and that the justice in his absence sentenced him to pay a fine of twenty-five dollars and fifteen days in jail, and suspended jail sentence. He makes this application to be allowed to appeal from his conviction. He was convicted and sentenced July 13, 1934. His affidavit was verified September 7, 1934, and presented to me the next day.

Section 751 of the Code of Criminal Procedure provides that “ For purpose of appealing, the defendant or some one in his behalf must within thirty days after judgment, or within thirty days after the commitment where the appeal is from the latter, make an affidavit showing the alleged errors in the proceedings or conviction or commitment complained of, and must within that time present it to the county judge, or a justice of the supreme court * * * and apply thereon for the allowance of the appeal.”

This application is not made within the thirty days of the judgment, or commitment, but nearly two months thereafter. The time in which to make this application is fixed by statute. No court can extend the time. There is no remedy now through the court. (People v. Rizzo, 246 N. Y. 334, 339.)

Application for allowance of appeal is denied.