Opinion
06-06-2017
The PEOPLE of the State of New York, Respondent, v. Juan Paulino ROSARIO, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), for respondent.
Purported appeal from order, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered on or about May 26, 2016, which, after a hearing, denied defendant's CPL 440.10 motion to vacate his judgment of conviction, unanimously dismissed, on the ground of failure to obtain leave to appeal pursuant to CPL 460.15.
Because defendant did not seek or obtain permission from a justice of this Court to appeal from the order that denied his CPL 440.10 motion, this Court lacks jurisdiction to entertain the appeal (see CPL 450.15[1], 460.15 ; People v. Ramos, 105 A.D.3d 684, 963 N.Y.S.2d 658 [1st Dept.2013], lv. denied 21 N.Y.3d 1045, 972 N.Y.S.2d 542, 995 N.E.2d 858 [2013] ; People v. Argentieri, 66 A.D.3d 558, 559, 887 N.Y.S.2d 568 [1st Dept.2009], lv. denied 14 N.Y.3d 769, 898 N.Y.S.2d 101, 925 N.E.2d 106 [2010] ). Although defendant obtained leave to appeal from a prior order that summarily denied his original CPL 440.10 motion, resulting in this Court's reversal of that order and remand for a hearing (132 A.D.3d 454, 17 N.Y.S.3d 134 [1st Dept.2015] ), this did not obviate the necessity of permission to appeal from the separate order entered after the hearing was held.
"A defendant's right to appeal within the criminal procedure universe is purely statutory ... and adherence to those requirements is a jurisdictional prerequisite for the taking of an appeal" (People v. Smith, 27 N.Y.3d 643, 647, 36 N.Y.S.3d 856, 57 N.E.3d 48 [2016] [internal quotation marks omitted]; see also People v. Pagan, 19 N.Y.3d 368, 370, 948 N.Y.S.2d 217, 971 N.E.2d 347 [2012] ). To deem defendant's present notice of appeal to be a motion for leave to appeal, and to grant such leave, would be contrary to the language and purpose of the statute, as well as that of this Court's rules (Rules of App.Div., 1st Dept. [22 NYCRR] § 600.8 [d] ).
RENWICK, J.P., RICHTER, FEINMAN, GISCHE, KAHN, JJ., concur.