Opinion
February 11, 1927.
Appeal from Court of Special Sessions, Appellate Part.
Edward V. Loughlin, for the motion.
Charles Solomon, opposed.
Present — DOWLING, P.J., FINCH, McAVOY, MARTIN and O'MALLEY, JJ.
We think that under section 520 of the Code of Criminal Procedure, where the one appeal allowed as of right in a criminal action has been had as in this case, to the Appellate Part of the Court of Special Sessions, an application for a further appeal to the Court of Appeals as permitted by that section should not be made to the Appellate Division, which has never passed upon the questions involved, or to a justice thereof, but should be made directly to a judge of the Court of Appeals. Where, however, the Appellate Division has heard and determined an appeal in a criminal action, an application for a further appeal may be properly made either to a judge of the Court of Appeals or to a justice of the Appellate Division in the department in which the conviction was had.
The motion should, therefore, be granted, and the order of this court entered herein on January 14, 1927 (See 219 App. Div. 352) vacated and the application for leave to appeal to this court denied, leaving the defendant, if he be so advised, to apply to a judge of the Court of Appeals for a certificate that a question of law is involved which ought to be reviewed by the Court of Appeals.
Motion for reargument granted, order of January 14, 1927, vacated, and motion for leave to appeal to this court denied.