Rogers v. Greenberg

Appellate Division of the Supreme Court of New York

Rogers v. Greenberg

150 A.D.2d 781, 543 N.Y.S.2d 280, 1989 N.Y. App. Div. LEXIS 7247

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 30, 1989

StatusPublished

This text of 150 A.D.2d 781 (Rogers v. Greenberg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rogers v. Greenberg, 150 A.D.2d 781, 543 N.Y.S.2d 280, 1989 N.Y. App. Div. LEXIS 7247 (N.Y. Ct. App. 1989).

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Opinion

Proceeding pursuant to CPLR article 78 to prohibit the respondents from proceeding with the prosecution of Kings County indictment No. 2147/85 against the petitioner.

Adjudged that the proceeding is dismissed, without costs or disbursements.

The petitioner claims that the People failed to file a timely notice of appeal (see, People v Coaye, 68 NY2d 857) to this court from an order of the Supreme Court, Kings County (Finnegan, J.), entered May 26, 1987, which granted his motion to dismiss indictment No. 2147/85. Therefore, he asserts that despite this court’s reversal of that order (see, People v Rogers, 141 AD2d 870), the respondents lack jurisdiction to prosecute him on that indictment. The petitioner should have proceeded by way of motion in this court to vacate the [782]*782decision and order in People v Rogers (supra). However, since the issue has been presented to us, albeit in an improper form, we consider it on the merits, and reject it. The facts alleged by the petitioner do not support a conclusion that the trial court improperly redated its order for the sole purpose of extending the People’s time to file a notice of appeal (cf., People v Baez, 49 AD2d 863). Thompson, J. P., Spatt, Sullivan and Harwood, JJ., concur.

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Proceeding pursuant to CPLR article 78 to prohibit the respondents from proceeding with the prosecution of Kings County indictment No. 2147/85 against the petitioner.

Adjudged that the proceeding is dismissed, without costs or disbursements.

The petitioner claims that the People failed to file a timely notice of appeal (see, People v Coaye, 68 NY2d 857) to this court from an order of the Supreme Court, Kings County (Finnegan, J.), entered May 26, 1987, which granted his motion to dismiss indictment No. 2147/85. Therefore, he asserts that despite this court’s reversal of that order (see, People v Rogers, 141 AD2d 870), the respondents lack jurisdiction to prosecute him on that indictment. The petitioner should have proceeded by way of motion in this court to vacate the [782]*782decision and order in People v Rogers (supra). However, since the issue has been presented to us, albeit in an improper form, we consider it on the merits, and reject it. The facts alleged by the petitioner do not support a conclusion that the trial court improperly redated its order for the sole purpose of extending the People’s time to file a notice of appeal (cf., People v Baez, 49 AD2d 863). Thompson, J. P., Spatt, Sullivan and Harwood, JJ., concur.

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Bluebook (online)

150 A.D.2d 781, 543 N.Y.S.2d 280, 1989 N.Y. App. Div. LEXIS 7247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-greenberg-nyappdiv-1989.

Opinion

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