This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 193
The People &c.,
            Appellant,
        v.
Natanael Sagastumeal Varenga,
            Respondent.




          Thomas C. Costello, for appellant.
          Phil Solages, for respondent.
          Randy Hertz et al., amici curiae.




FAHEY, J.:
          On this appeal, we are asked to decide when a
defendant's judgment of conviction and sentence becomes final for
purposes of applying a new rule of federal constitutional
criminal procedure, when the defendant does not take a direct
appeal to the Appellate Division.   Defendant asks us to hold that

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                               - 2 -                        No. 193

the judgment did not become final until one year and 30 days
after he was sentenced, inasmuch as that was the last day that he
could have sought an extension from the Appellate Division to
file a late notice of appeal pursuant to CPL 460.30 (1).
          The Appellate Division never granted defendant such
relief.   No motion pursuant to CPL 460.30 (1) for leave to file a
late notice of appeal was ever made.   Defendant asks us to extend
the finality of the judgment by the one-year grace period of CPL
460.30 (1) simply because that grace period is available, and not
because he has demonstrated entitlement to its relief.    In light
of the uncertainty in the finality of judgments that would result
if we adopted defendant's definition of finality, we reject that
definition.   We hold that where a defendant does not take a
timely direct appeal from the judgment, and does not move for
leave to file a late notice of appeal pursuant to CPL 460.30 (1),
the judgment becomes final 30 days after sentencing, on the last
day that a defendant has an inviolable right to file a notice of
appeal pursuant to CPL 460.10 (1) (a).
                                I.
          Defendant is a native of Honduras who was granted
Temporary Protected Status by United States immigration
authorities in 1999.   In 2008, defendant was charged with assault
in the second degree, a class D felony (see Penal Law § 120.05).
On March 19, 2009, defendant pleaded guilty to the charge in
exchange for a negotiated sentence of five years' probation.    On


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                                - 3 -                        No. 193

May 14, 2009, defendant was sentenced as promised.   During the
sentencing proceeding, defendant was informed on the record of
his right to appeal the judgment of conviction and sentence.
Defendant nevertheless did not file a notice of appeal.
          Defendant subsequently was notified that his Temporary
Protected Status would not be renewed due to his felony
conviction, and he was placed in removal proceedings.   In April
2011, defendant filed a CPL 440.10 motion seeking to vacate the
2009 judgment.    Defendant's primary claim was based on the United
States Supreme Court's 2010 decision in Padilla v Kentucky (559
US 356 [2010]).   In Padilla, the Supreme Court held that the
Sixth Amendment of the Federal Constitution requires criminal
defense counsel to inform a noncitizen client whether his or her
guilty plea "carries a risk of deportation" (id. at 374).     At the
time defendant filed his CPL 440.10 motion, neither the United
States Supreme Court nor this Court had determined whether
Padilla should be applied retroactively.   Defendant therefore
asserted in his motion papers that Padilla should apply
retroactively.
          Supreme Court denied defendant's CPL 440.10 motion
without a hearing.   The court concluded that Padilla should not
be applied retroactively to judgments such as defendant's that
became final before Padilla was decided.
          A Justice of the Appellate Division granted defendant's
application for leave to appeal from Supreme Court's order (see


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                                 - 4 -                       No. 193

CPL 460.15).   While that appeal was pending, the United States
Supreme Court decided Chaidez v United States (___ US ___, 133 S
Ct 1103 [2013]).    In Chaidez, the Supreme Court applied the
retroactivity principles set forth in Teague v Lane (489 US 288
[1989], reh denied 490 US 1031 [1989]) and held that Padilla
announced a "new rule" that would not be applied retroactively to
any conviction that became final before Padilla was decided on
March 31, 2010 (see Chaidez, ___ US at ___, 133 S Ct at 1113).1
          After Chaidez was decided, the Appellate Division
invited the parties to comment on whether defendant's 2009
judgment of conviction and sentence became final before or after
Padilla was decided.    Defendant contended that the judgment did
not become final until June 13, 2010, a year and 30 days after he
was sentenced on May 14, 2009.    Defendant's reasoning was that
because CPL 460.10 (1) (a) granted him 30 days from the
imposition of sentence to file a notice of appeal, and CPL 460.30
(1) granted him an additional year to obtain an extension to file
a late notice of appeal, he had not exhausted the availability of
an appeal until the last date on which he could have filed a
notice of appeal.    The People responded, as relevant here, that
the judgment became final 30 days after sentencing, inasmuch as



     1
          Although the Supreme Court discussed the finality of
the defendant's "conviction" in Chaidez, and we discuss here the
finality of defendant's "judgment" due to our own state's
terminology (see CPL 1.20 [15]), we are referring to the same
legal principle.

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                               - 5 -                         No. 193

that was the last date upon which defendant had the automatic
right to file a notice of appeal pursuant to CPL 460.10 (1) (a).
The People argued that defendant was not entitled to extend the
date of finality of the judgment by relying on the one-year grace
period of CPL 460.30 (1), inasmuch as defendant never sought an
extension to file a late notice of appeal pursuant to that
statute.
           The Appellate Division rejected defendant's contention
that it should give broader retroactive effect to Padilla than
the United States Supreme Court gave to Padilla in Chaidez, and
therefore held that Padilla should not be applied retroactively
to judgments that became final before Padilla was decided (see
115 AD3d 684, 685 [2d Dept 2014]).     The Appellate Division's
decision therefore was consistent with this Court's subsequent
decision in People v Baret (23 NY3d 777 [2014], cert denied 135 S
Ct 961 [2015]), decided a few months later.
           Nevertheless, the Appellate Division reasoned that
defendant could benefit from the Padilla rule on his CPL 440.10
motion because "defendant's conviction . . . did not become final
until June 14, 2010, the last date on which he would have been
permitted to seek leave to file a late notice of appeal" (115
AD3d at 685).   The court cited CPL 460.30 (1), as well as its
prior decision in People v Andrews (108 AD3d 727 [2d Dept 2013],
lv denied 22 NY3d 1038 [2013], reconsideration denied 23 NY3d
1018 [2014]) (see 115 AD3d at 685).


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                                 - 6 -                       No. 193

          In Andrews, the Appellate Division noted that the
defendant in that case could not benefit from Padilla because
"his conviction became final, at the latest, on October 5, 2009,
the last date on which he would have been permitted to seek leave
to file a late notice of appeal" (Andrews, 108 AD3d at 728
[emphasis added]).   Thus, in Andrews, the Appellate Division did
not conclusively decide the issue of finality where a defendant
does not take a direct appeal.    This Court did not sanction
Andrews's inconclusive statement (see generally People v
Rodriguez, 91 NY2d 912, 912 [1998]).     In this case, by contrast,
the Appellate Division decided the issue of finality where the
defendant does not take a direct appeal by applying the CPL
460.30 (1) grace period (see 115 AD3d at 685).     The court held
that because the judgment did not become final until after
Padilla was decided on March 31, 2010, defendant could raise a
Padilla claim on his CPL 440.10 motion (see 115 AD3d at 685-686).
The Appellate Division remitted the matter to Supreme Court for
an evidentiary hearing on defendant's motion (see id. at 686-
687).
          A Judge of this Court granted the People leave to
appeal (23 NY3d 1068 [2014]).    We now reverse.
                                 II.
          Initially, we note that there are certain questions of
law that are not at issue on this appeal.    First, the retroactive
application of Padilla is not at issue.    As noted above, in


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                               - 7 -                         No. 193

Chaidez, the United States Supreme Court held that Padilla
announced a new rule and that pursuant to federal retroactivity
principles, that new rule would not apply to convictions that
became final before Padilla was decided (see Chaidez, 133 S Ct at
1113).   Last year, in Baret, this Court rejected the defendant's
contentions that we should interpret Padilla more broadly than
the Supreme Court did in Chaidez, or that Padilla should be
applied retroactively pursuant to state retroactivity principles
(see Baret, 23 NY3d at 795-800).   We therefore held that Padilla
would not be applied retroactively in state postconviction
collateral review proceedings to judgments that became final
before Padilla was decided (see id. at 782-783).
          Second, for purposes of assessing whether a new rule of
federal constitutional criminal procedure applies on collateral
review, the date of finality of a judgment where a defendant does
take a direct appeal is not at issue here.   When a defendant
takes a direct appeal, the judgment becomes final for federal
collateral review purposes when the defendant's applications for
discretionary review from higher appellate courts have been
denied, or the time for seeking such discretionary appellate
review has expired (see Gonzalez v Thaler, 132 S Ct 641, 653-654
[2012]; Clay v United States, 537 US 522, 527 [2003]; Griffith v
Kentucky, 479 US 314, 321 n 6 [1987]).   This Court has applied
that rule of finality where the defendant takes a direct appeal
(see Policano v Herbert, 7 NY3d 588, 593 [2006]; People v Pepper,


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                               - 8 -                       No. 193

53 NY2d 213, 221-222 [1981], cert denied 454 US 967 [1981], cert
denied sub nom. New York v Utter, 454 US 1162 [1982]).
          Here, however, defendant did not take a direct appeal.
Thus, the only question of law presented for our review is when a
judgment of conviction and sentence becomes final where the
defendant does not take a direct appeal, for purposes of
determining whether a new rule of federal constitutional criminal
procedure will apply in a state postconviction collateral review
proceeding.
                               III.
          Relying on the general federal standard of finality
(see e.g. Griffith, 479 US at 321 n 6), defendant asserts that
the availability of an appeal cannot be truly "exhausted" until
one year and 30 days after sentencing, inasmuch as within that
time period, he could have asked the Appellate Division to grant
him an extension to file a notice of appeal pursuant to CPL
460.30 (1).   As defendant acknowledges, however, the United
States Court of Appeals for the Second Circuit has specifically
rejected the proposition that the one-year grace period of CPL
460.30 (1) extends the date of finality of a judgment for federal
habeas corpus purposes.
          The Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA) provides that a federal habeas corpus petitioner
generally must file the petition within one year of the date that
a state court judgment becomes final, either "by the conclusion


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                               - 9 -                        No. 193

of direct review or the expiration of the time for seeking such
review" (28 USC § 2244 [d] [1] [A]).   In Bethea v Girdich (293
F3d 577 [2d Cir 2002]), the Second Circuit held that the
petitioner's motion for an extension of time to file a notice of
appeal, which the Appellate Division denied, did not extend the
date of finality of the petitioner's judgment and therefore did
not "restart" the one-year AEDPA limitations period (see Bethea,
293 F3d at 578-579).   The Second Circuit wrote:
          "As we stated in holding that state-court
          applications for collateral relief do not
          'restart' the AEDPA limitations period, '[i]f
          the one-year period began anew when the state
          court denied collateral relief, then state
          prisoners could extend or manipulate the
          deadline for federal habeas review by filing
          additional petitions in state court,' thus
          defeating the goal of the AEDPA to prevent
          undue delays in federal habeas review. This
          reasoning applies at least as strongly to
          motions to extend the time to appeal, which
          'can be sought at any time, even many years
          after conviction.' Accordingly, we hold that
          the filing of a motion to extend the time to
          appeal or to file a late notice of appeal
          does not 'restart' the AEDPA limitation
          period" (Bethea, 293 F3d at 578-579
          [citations omitted]).
The Second Circuit therefore concluded that the petitioner's
judgment became final 30 days after sentencing, "when [his] time
for filing a notice of appeal from his judgment of conviction
expired" pursuant to CPL 460.10 (1) (id. at 578; see also
Villegas v Hunt, 2008 WL 4724296, *2, 2008 US Dist LEXIS 86130,
*4-5 [WD NY, Oct. 24, 2008, No. 07-CV-6552(VEB)]; McDermott v
Rock, 2008 WL 346371, *1-2, 2008 US Dist LEXIS 8781, *3-5 [ND NY,


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                              - 10 -                          No. 193

Feb. 6, 2008, No. 9:07-CV-0932(GLS)(GJD)]).
          We agree with defendant and the amici curiae who have
submitted a brief in support of his position that Bethea is not
dispositive of the question before us (see generally Danforth v
Minnesota, 552 US 264, 278-281 [2008]).    Nevertheless, Bethea is
instructive.   This Court had an opportunity in Baret to depart
from the Teague standard and provide broader retroactive
application to the Padilla rule than the Supreme Court provided
to that rule in Chaidez.   This Court declined to do so
(see Baret, 23 NY3d at 795-800).   If we were to adopt defendant's
definition of finality here, we would in practice be providing
broader retroactive application to the Padilla rule, by extending
the date of finality of judgments beyond the date that the
federal courts in New York apply in federal postconviction
collateral review proceedings.
          More crucial to our analysis, however, is the
uncertainty that would result in the finality of judgments if we
adopted defendant's definition of finality.   The Appellate
Division did not grant defendant an extension to file a notice of
appeal pursuant to CPL 460.30 (1) because defendant never sought
such relief.   Defendant asks us to extend the date of finality of
the judgment by the one-year grace period of CPL 460.30 (1)
simply because that grace period exists.   Contrary to defendant's
implication, that grace period is not available to any defendant
who asks for an extension.


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                              - 11 -                          No. 193

           Rather, a defendant seeking to file a late notice of
appeal pursuant to CPL 460.30 (1) must demonstrate that he or she
was prevented from timely filing a notice of appeal due to the
"improper conduct of a public servant or improper conduct, death
or disability of the defendant's attorney," or the "inability of
the defendant and his attorney to have communicated . . .
concerning whether an appeal should be taken" (CPL 460.30 [1]
[a], [b]).   Defendant did not make any such showing because he
did not request leave from the Appellate Division to file a late
notice of appeal pursuant to CPL 460.30 (1).2   Defendant's
contention, essentially, is that because he could have made a
motion for leave to file a late notice of appeal pursuant to CPL
460.30 (1), we should grant him the benefit of that one-year
period to extend the date that the judgment became final, without
requiring him to demonstrate his entitlement to relief under the
statute.
           We decline to do so.   Adopting defendant's reasoning
would result in uncertainty in the finality of judgments in many
procedural situations.   For example, a defendant who takes a


     2
          Contrary to the dissent's suggestion (see dissenting
op, at 3-4), we express no opinion on the date of finality of a
judgment where the defendant makes an unsuccessful CPL 460.30
motion for leave to file a late notice of appeal. Defendant here
made no such motion, and we therefore have no occasion to
consider whether the finality of the judgment would be extended
by the mere making of a CPL 460.30 motion, or whether the motion
must be granted by the Appellate Division to warrant a departure
from the rule we set forth here. To decide that question would
amount to an improper advisory opinion.

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                              - 12 -                         No. 193

direct appeal to the Appellate Division but does not seek leave
to appeal to this Court in a timely fashion could argue that the
judgment was not final until one year and 30 days after the
Appellate Division affirmance, inasmuch as the defendant could
have sought leave from this Court to file a belated application
for discretionary review pursuant to CPL 460.30 (1).   Or, a
defendant who has filed a notice of appeal with the Appellate
Division but has had the appeal dismissed due to failure to
perfect could argue that the judgment is not yet final, inasmuch
as the defendant could ask the Appellate Division to vacate the
dismissal of the appeal.
           Indeed, if we adopt defendant's logic, other
defendants who did not take a direct appeal conceivably could
argue that their judgments were never final, inasmuch as they
could seek to file a late notice of appeal even after the one-
year grace period of CPL 460.30 has expired by moving for a writ
of error coram nobis (see generally People v Syville, 15 NY3d
391, 397-401 [2010]).   A motion for coram nobis relief in that
context has no time limitation, and the relief granted is
precisely the same as the relief granted on a successful CPL
460.30 application: the defendant is allowed to file a late
notice of appeal and take a direct appeal to the Appellate
Division (see id. at 402).   Although a defendant seeking leave to
file a late notice of appeal by way of a writ of error coram
nobis generally must satisfy a higher evidentiary burden than a


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                              - 13 -                           No. 193

defendant seeking CPL 460.30 relief (see People v Andrews, 23
NY3d 605, 611 [2014], rearg denied 24 NY3d 937 [2014], citing
Syville, 15 NY3d at 400 n 2), under defendant's reasoning here, a
defendant seeking coram nobis relief would not be required to
demonstrate entitlement to that relief in order to extend the
finality of the judgment.   Rather, the defendant would be
entitled to extend the finality of the judgment simply because
coram nobis relief is available, and not because the defendant
has demonstrated entitlement to it.
           We have recognized society's interest in the finality
of judgments as "formidable" (People v Jackson, 78 NY2d 638, 647
[1991]).   Defendant's definition of finality would wreak havoc on
that formidable interest by requiring any court determining the
date of finality of a judgment to analyze what could have
happened rather than what did happen.    We therefore reject
defendant's proposed definition of finality.    We hold that where,
as here, a defendant does not take a direct appeal from the
judgment of conviction and sentence, the judgment becomes final
30 days after sentencing, when the defendant's automatic right to
seek direct appellate review of the judgment expires pursuant to
CPL 460.10 (1) (a).
           Defendant was sentenced on May 14, 2009.   Defendant's
judgment of conviction and sentence therefore became final before
Padilla was decided on March 31, 2010.    Supreme Court did not err
in holding that defendant's Padilla claim was not cognizable on


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                             - 14 -                       No. 193

his CPL 440.10 motion to vacate the judgment, and the court
properly denied defendant's motion without a hearing.
          Accordingly, the order of the Appellate Division should
be reversed and the order of Supreme Court reinstated.




                             - 14 -
People v Natanael Sagastumeal Varenga
No. 193




RIVERA, J.(dissenting):
          The question presented on this appeal is when does a
judgment become final for purposes of a new rule announced during
CPL 460.30's one-year grace period for filing a notice of appeal.
The majority needlessly addressees a much broader question and
concludes that, in the case of a defendant who fails to seek an
extension pursuant to 460.30, a judgment is final 30 days from
when the defendant was sentenced, pursuant to CPL 460.10 (1) (a).
I dissent, and rather than rely on federal habeas concerns not
relevant to the state issues presented in this appeal or
unsupported prudential concerns about a potential impact on
finality of judgments, I ground my analysis on the unique facts
of this case and the need for a legally sound and fair approach
to the predicament faced by defendants when a new rule is issued
after sentencing but before the time under 460.30 expires.
          Defendant was sentenced upon his guilty plea on May 14,
2009, and under CPL 460.30 had until June 14, 2010, to seek leave
to file a notice of appeal.   Approximately ten weeks before the
end of this one-year period, the United States Supreme Court
issued its decision in Padilla v Kentucky (559 US 356 [2010]),
holding that defense counsel must inform their client of the


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                                - 2 -                       No. 193

immigration consequences of a guilty plea.    Defendant filed a
motion pursuant to CPL 440.10, seeking to vacate his judgment on
the grounds that his attorney failed to advise him of the adverse
immigration consequences of his plea.    The Appellate Division
concluded that defendant's 440.10 motion was timely filed because
the new rule announced in Padilla was decided before defendant's
judgment became final on June 14, 2010, the last day for
defendant to file a notice of appeal under CPL 460.30.
            The majority reverses, relying, in part, on Bethea v
Girdich (293 F3d 577 [2d Cir 2002]).    However, as the majority
acknowledges, Bethea is not dispositive (majority op, at 9), but
I would add that it is also not persuasive or, as the majority
concludes, "instructive."    The Second Circuit in Bethea sought to
minimize undue delays in federal habeas review by avoiding what
it considered to be a state prisoner's ability to extend or
manipulate the deadline for federal habeas by filing applications
for collateral relief.    Therefore, the court refused to restart
the Anti-Terrorism and Effective Death Penalty Act limitations
period anew with the filing of a motion to extend the time to
appeal or to file a late notice of appeal (Bethea, 293 F3d at
578-579).    The concerns cited by the Second Circuit in Bethea are
of no moment where the defendant's claim is one that results from
a new rule issued after the initial 30 days have passed from his
sentencing.    Here, there is no attempt by defendant to manipulate
the system.    Rather, defendant seeks judicial review of a legally


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                                - 3 -                         No. 193

cognizable claim, fully available to a defendant whose conviction
was not final before Padilla was decided.
          Turning the focus to this limited class of defendants
whose claims arise after the expiration of the initial 30 days
for filing a notice of appeal as of right, the majority's
approach results in an illogical distinction between similarly
situated defendants, and potentially shields illegal convictions
from meritorious claims by foreclosing avenues of collateral and
habeas review.1
          By way of example, compare the situation where two
defendants sentenced on the same day, in accordance with their
guilty pleas, do not file a notice of appeal within the 30-day
period provided for in CPL 460.10.      Ten months later, our Court
pronounces a new rule, which ostensibly provides an appellate
issue for both defendants.    One defendant files a motion for an
extension under CPL 460.30, which the Appellate Division denies,
and defendant does not seek review from our Court, or
alternatively we deny the leave to appeal.     The other defendant
does not seek an extension.   Under the majority's holding, the
defendant who unsuccessfully filed for an extension has a viable
argument that the judgment is final when this Court denies leave,



     1
       Notwithstanding the majority's statements to the contrary,
my disagreements are based on the ineluctable conclusions to be
drawn from the majority's analysis, and not on what the majority
claims it did not decide (see majority op, at 11 n 2).


                                - 3 -
                               - 4 -                         No. 193

or when the time for discretionary review of the denial of the
460.10 motion has expired.   In contrast, the judgment of the
defendant who did not file for an extension is final 30 days
after sentencing--months before the appellate claim was viable.
Yet, these two defendants are similar in all respects: both
failed to file a notice of appeal within the 30 days provided for
in CPL 460.10 (1) (a), neither one had been granted an extension
to file a late notice of appeal, nor will they have an
opportunity to challenge their judgments on direct appeal.
Nevertheless, only the defendant who files an unsuccessful motion
under 460.30 (1) may seek collateral relief from the judgment.
There is no logical reason for such distinction.
          Or consider the example where we announce a new rule on
the last day of the one-year extension period.    Even the most
diligent defendant, including one not incarcerated, is unlikely
to seek leave to appeal before the 460.30 time period runs out.
A rule foreclosing such a defendant from an opportunity to
collaterally challenge the judgment of conviction and sentence is
unjustifiably harsh and unfair, and does nothing to further the
goals of our state laws (see e.g. People v Syville, 15 NY3d 391,
399-340 [2010] [discussing the purpose of CPL 460.30]).
          The majority's "more crucial" basis for its holding is
what it considers to be "the uncertainty that would result in the
finality of judgments if [the court] adopted defendant's
definition of finality" (majority op, at 10).    However, the


                               - 4 -
                               - 5 -                           No. 193

majority's prudential concerns regarding the finality of appeals
are unjustified.   The fact is that CPL 460.30 has a defined one-
year deadline (see Syville, 15 NY3d at 340 [describing the
deadline as a "a significant restriction"]).    Furthermore,
defendants already have at their disposal statutory and common
law mechanisms to challenge a judgment, years after the time to
appeal has expired (see CPL 440.10, 460.30; Syville, 15 NY3d at
400 [granting coram nobis relief]).    These statutes evince the
legislative interest in ensuring that judgments are reviewed for
error.   Therefore, I see no reason to interpret CPL 460.30
narrowly to limit the application of CPL 440.10, thereby
foreclosing consideration of a claim where the defendant has not
even had the benefit of appellate review of the judgment.
Moreover, as the above examples illustrate, the finality of the
judgments are uncertain until at least the expiration of the one-
year extension period, because until that time the People cannot
know if a defendant will choose to seek leave to appeal pursuant
to CPL 460.30 (1).   Finality under our criminal justice system is
no more certain under the majority's analysis.2


     2
      We should also not turn a blind eye to the fact that,
within the Appellate Division, the Departments grant extensions
under this provision at different rates, and that, as a result,
the majority's holding unfairly penalizes defendants based on
differences beyond their control. See Joanne Marci, Missed
Deadlines for Filing a Notice of Appeal: Criminal Procedure Law §
460.30 to the Rescue (2009), available at
http://www.nysda.org/docs/PDFs/09Missed%20
Deadlines%20for%20Filing%20a%20Notice%20of%20Appeal%20CPL%20sec%2
0460.30%20to%20the%20Rescue.pdf (accessed Dec. 9, 2015).

                               - 5 -
                                - 6 -                           No. 193

*   *   *   *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order of the Appellate Division reversed and order of Supreme
Court, Suffolk County, reinstated. Opinion by Judge Fahey.
Judges Pigott, Abdus-Salaam and Stein concur. Judge Rivera
dissents in an opinion in which Chief Judge Lippman concurs.

Decided December 17, 2015




     Here, the Second Department rendered its decision on
defendant's case fully aware of its practice regarding motions
under 460.30, and in my opinion there is no compelling legal
basis to reverse in this case.

                                - 6 -
