

People v Rosario (2017 NY Slip Op 04393)





People v Rosario


2017 NY Slip Op 04393


Decided on June 6, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 6, 2017

Renwick, J.P., Richter, Feinman, Gische, Kahn, JJ.


4170 1640/97

[*1]The People of the State of New York, Respondent,
vJuan Paulino Rosario, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), for respondent.

Purported appeal from order, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered on or about May 26, 2016, which, after a hearing, denied defendant's CPL 440.10 motion to vacate his judgment of conviction, unanimously dismissed, on the ground of failure to obtain leave to appeal pursuant to CPL 460.15.
Because defendant did not seek or obtain permission from a justice of this Court to appeal from the order that denied his CPL 440.10 motion, this Court lacks jurisdiction to entertain the appeal (see CPL 450.15[1], 460.15; People v Ramos, 105 AD3d 684 [1st Dept 2013], lv denied 21 NY3d 1045 [2013]; People v Argentieri, 66 AD3d 558, 559 [1st Dept 2009], lv denied 14 NY3d 769 [2010]). Although defendant obtained leave to appeal from a prior order that summarily denied his original CPL 440.10 motion, resulting in this Court's reversal of that order and remand for a hearing (132 AD3d 454 [1st Dept 2015]), this did not obviate the necessity of permission to appeal from the separate order entered after the hearing was held.
"A defendant's right to appeal within the criminal procedure universe is purely statutory ... and adherence to those requirements is a jurisdictional prerequisite for the taking of an appeal" (People v Smith, 27 NY3d 643, 647 [2016][internal quotation marks omitted]; see also People v Pagan, 19 NY3d 368, 370 [2012]). To deem defendant's present notice of appeal to be a motion for leave to appeal, and to grant such leave, would be contrary to the language and purpose of the statute, as well as that of this Court's rules (Rules of App Div, 1st Dept [22 NYCRR] § 600.8[d]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 6, 2017
CLERK


