Opinion
Decided September 21, 1995
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department.
Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer of counsel), appellant pro se. Dennis C. Vacco, Attorney-General, New York City (Arnold D. Fleischer of counsel), for Ernst Rosenberger, respondent.
Stillman, Friedman Shaw, P.C., New York City (Edward M. Shaw of counsel), for Tupac Shakur, respondent.
MEMORANDUM.
The judgment of the Appellate Division should be affirmed, without costs.
The taking of an appeal is a jurisdictional prerequisite to the consideration of a CPL 460.50 application for bail pending appeal. A Judge to whom a CPL 460.50 application is made has no authority to consider such an application unless the defendant has established that an appeal was taken from the judgment or sentence. A postsentence application is void and of no effect when the prerequisite appeal has not been established. Thus, it cannot be considered an "application" within the meaning of CPL 460.50 (3).
Therefore, the defendant's February 7, 1995 request to a Justice of the Supreme Court to set bail pending appeal to the Appellate Division, made immediately following his sentencing, was ineffective because it antedated the notice of appeal filed on February 9, 1995. Consequently, the subsequent application to a Justice of the Appellate Division was a first application under CPL 460.50 and was properly entertained.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), judgment affirmed, without costs, in a memorandum.