Opinion
2003-1397 ORCR.
Decided November 5, 2004.
Appeal by defendant from an order of the Justice Court, Town of Wallkill, Orange County (R. Freehill, J.), dated September 16, 2003, which indicated that, prior to sentencing, the court denied his motion to vacate the judgment convicting him of violating section 1153.1a of the New York State Uniform Fire Prevention and Building Code.
Appeal unanimously dismissed.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
A trial was held on October 15, 2002, following which defendant was found guilty of violating section 1153.1a of the New York State Uniform Fire Prevention and Building Code. The matter was adjourned for sentencing. Prior to sentencing, defendant, by notice of motion dated December 2, 2002, moved to set aside the verdict. Although defense counsel denominated the motion as being pursuant to CPL 440.40 [ sic], it appears that counsel believed that said motion was made pursuant to CPL 440.10 [ sic]. Inasmuch as the record on appeal indicates that the sentence was imposed subsequent to the motion, to wit: February 5, 2003, the motion was actually one to set aside the verdict pursuant to CPL 330.30. Further confusion resulted in the fact that although the court's decision was not reduced to writing until September 16, 2003 (approximately 7 months after sentencing), said written decision indicates, without providing a date, that the motion was denied prior to sentence.
Since no direct appeal lies from an order denying a CPL 330.30 motion, the appeal must be dismissed ( see CPL 450.10, 450.15). We note that even if the appeal were deemed as being from the judgment of conviction, the appeal would be untimely as not having been taken within 30 days of the date of the judgment of conviction. Moreover, even if the motion was post judgment and therefore one to vacate the judgment pursuant to CPL 440.10, defendant was required to seek leave to appeal (CPL 450.15). In the instant matter, no such application was made to the court.