Opinion
Submitted September 9, 1974
Decided October 29, 1974
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JOHN J. McCALL, J.
Ralph W. Smith, District Attorney ( Peter L. Rupert of counsel), for motion.
J. Raymond Fisher opposed.
We hold that the requirement of CPL 460.10 (subd. 5) that a notice of appeal be filed and served within 15 days after a certificate granting leave to appeal has been issued under CPL 460.20 is not jurisdictional, and that the period for such filing and service may accordingly be extended by our court for good cause. ( People v. Smith, 11 N.Y.2d 933; People v. McCullough, 300 N.Y. 458; cf. People v. Korenini, 26 N.Y.2d 1018; CPL 460.10, subd. 6.) Factors among others to be considered in determining an application for an extension of such period would include acceptable excuse on the part of the appellant for noncompliance, prejudice suffered by the respondent in consequence of such noncompliance and the existence of a persisting substantial ground for review on the merits.
In this instance, we find that there is a persisting substantial ground for our review of the affirmance of this defendant's conviction. Accordingly the motion to dismiss this appeal should be denied and defendant be granted an extension of time to expire 10 days after the date hereof in which fully to comply with the provisions of CPL 460.10 (subd. 5).
Motion to dismiss the appeal herein denied. The time within which defendant is to comply with the provisions of CPL 460.10 (subd. 5) is extended for 10 days from the date hereof.