People v. Thomas

New York Court of Appeals

People v. Thomas

376 N.E.2d 1329, 44 N.Y.2d 759, 44 N.Y. 759, 405 N.Y.S.2d 684, 1978 N.Y. LEXIS 1958

CourtNew York Court of Appeals

DecidedApril 25, 1978

StatusPublished

Cited by6 cases

This text of 376 N.E.2d 1329 (People v. Thomas) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Thomas, 376 N.E.2d 1329, 44 N.Y.2d 759, 44 N.Y. 759, 405 N.Y.S.2d 684, 1978 N.Y. LEXIS 1958 (N.Y. 1978).

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Opinion

OPINION OF THE COURT

Memorandum.

An appeal from an order of an intermediate appellate court granting or denying an application for an extension of time in which to take an appeal may be entertained by this court only if the "order states that the determination was made upon the law alone” (CPL 460.30, subd 6). * The order here does not contain such a recital. Therefore, since the possibility that the Appellate Division’s decision was premised on an exercise of discretion cannot be excluded, the appeal must be dismissed (see People v Calabur, 178 NY 463, 464; People v O’Brien, 164 NY 57, 58).

We also note that, no leave having been sought to appeal from the earlier order which had vacated the appointment of *761 counsel on the ground that no appeal had been taken to the Appellate Division, the defendant’s contentions relating to that order may not be considered by us (see CPL 470.60, subd 3).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Appeal dismissed in a memorandum.

*

The statute also provides that only a Judge of the Court of Appeals may issue a certificate permitting such an appeal (CPL 460.30, subd 6).

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OPINION OF THE COURT

Memorandum.

An appeal from an order of an intermediate appellate court granting or denying an application for an extension of time in which to take an appeal may be entertained by this court only if the "order states that the determination was made upon the law alone” (CPL 460.30, subd 6). * The order here does not contain such a recital. Therefore, since the possibility that the Appellate Division’s decision was premised on an exercise of discretion cannot be excluded, the appeal must be dismissed (see People v Calabur, 178 NY 463, 464; People v O’Brien, 164 NY 57, 58).

We also note that, no leave having been sought to appeal from the earlier order which had vacated the appointment of *761 counsel on the ground that no appeal had been taken to the Appellate Division, the defendant’s contentions relating to that order may not be considered by us (see CPL 470.60, subd 3).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Appeal dismissed in a memorandum.

*

The statute also provides that only a Judge of the Court of Appeals may issue a certificate permitting such an appeal (CPL 460.30, subd 6).

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Bluebook (online)

376 N.E.2d 1329, 44 N.Y.2d 759, 44 N.Y. 759, 405 N.Y.S.2d 684, 1978 N.Y. LEXIS 1958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-thomas-ny-1978.

Opinion

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