People v. Westlake

268 A.D. 908, 51 N.Y.S.2d 22, 1944 N.Y. App. Div. LEXIS 4197

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1944
• Status: Published

Opinion

The defendant, upon his plea of guilty, was convicted in the County -Court of Kings County in 1933 of the crime of robbery in the second degree, and sentenced to State prison for a term of years. In 1944 he made a motion in the court in which he had been convicted to vacate the judgment of conviction, for permission to withdraw his plea of guilty, and to plead not guilty to the indictment. That motion was denied by the County Court. The defendant has served and filed a notice of appeal from the order denying the motion. He now moves (No. 788) for permission to prosecute the appeal as a poor person, to dispense with printing the record on appeal, for an enlargement of time to prosecute the appeal, and for other relief. The District Attorney cross moves to dismiss the appeal upon the ground that the order is not appealable. The cross motion (No. 789) to dismiss the appeal is granted and the appeal dismissed accordingly. The order is not appealable. The right to an appeal in a criminal action is a matter of legislative control. Appeal is entirely a matter of statute. (People v. Reed, 276 N. Y. 5, 10; People v. Zerillo, 200 N. Y 443.) The Code of Criminal Procedure does not authorize such an appeal (§ 517). It was so decided by this court in People v. Olstein (252 App. Div. 795), where an appeal from a similar order was dismissed. In view of the foregoing disposition of the motion to dismiss, the motion of the defendant is dismissed. Present — Close, P. J., Hagarty, Johnston, Adel and Aldrich, JJ.