Opinion
February 28, 1963
Appeal from the Erie County Court.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Judgment and order unanimously affirmed. Memorandum: This case was tried in October, 1961. Judgment of conviction was entered on November 30, 1961. On the same day the Trial Judge granted a certificate of reasonable doubt and defendant was admitted to bail during the pendency of the appeal. (Code Crim. Pro., § 527.) Argument thereof took place some 15 months later. Section 529 provides, however, that if the appeal is not argued or submitted within 120 days after the granting of the certificate the defendant shall surrender himself in execution of the judgment of conviction "unless the court wherein the appeal is pending shall, on five days' notice of motion therefor to the district attorney, for good cause shown, extend the defendant's time to argue the appeal." Over a period of time we have observed that this statutory provision is ignored by defense counsel and District Attorneys and by the court if the matter is brought to its attention. We construe the provisions of section 529 to place upon the District Attorney and the appropriate court or Judge the joint responsibility of complying with the provisions thereof relating to surrender of the defendant at the end of the prescribed statutory period. It is obvious that in such event no defendant will voluntarily surrender himself in execution of the judgment. If an appropriate order has not been made by this court extending defendant's time to argue the appeal, the prosecutor should move before the appropriate court or Judge for an order directing execution of the judgment.