People v. Duquette
| Decision Date | 03 October 1991 |
| Citation | 152 Misc.2d 239,575 N.Y.S.2d 649 |
| Parties | The PEOPLE of the State of New York, v. William A. DUQUETTE, Respondent. |
| Court | New York County Court |
Alexander Lesyk, New York City, for respondent William duquette.
Charles A. Gardner, Dist. Atty. (Jane M. Getman, Asst. Dist. Atty., of counsel), for the People.
Respondent moves to dismiss the appeal taken by the People from a prior dismissal of the case by the Massena Village Court. That Court dismissed because the People did not timely file a supporting deposition. The grounds for the motion to dismiss the appeal are that the People did not take the appeal within the statutory period of thirty days, as measured from the date of service of the order. CPL 460.10(1)(a) and (c).
Service of papers is not a defined concept under the criminal Procedure Law, although it is statutorily defined in the CPLR (Rule 2103(b)(2)). See, People v. Coaye, 68 N.Y.2d 857, at 858, 508 N.Y.S.2d 410, 501 N.E.2d 18 (1986). In the civil practice, mail service is measured from the date when mailing is complete and five days are added to that period.
Where the Criminal Procedure Law does not provide a standard by which to measure compliance with a rule, it is reasonable to refer to the CPLR. It is evident that reference is made periodically to the CPLR for use in the criminal context. See 22 NYCRR 200.33(a) which refers to CPLR 5525(c) concerning the settlement of transcripts; see also provisions of the Justice Court Act, which make the CPLR generally applicable in the lower courts.
Using CPLR 2103 to measure the time for effective service of the order, and in the absence of any proof in the record as to the actual date on which the People received the lower court's order, the notice of appeal was timely filed. The Judge issued his decision on July 23, 1991. That 30 day period expired on August 22, 1991, but would be extended under CPLR 2103 to August 27, 1991, the date on which the People in fact served the Notice of Appeal.
While it is true that the appellate courts may not extend the time in which a party may take an appeal, the Court may and must determine the meaning of the statutory provision requiring service within the statutory time of thirty days.
For the foregoing reasons, the motion to dismiss the appeal as not having been taken on a timely basis, is hereby denied.
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...Law does not permit the reconsideration of motions. CPLR 2221 governs motions affecting a prior order. See People v. Duquette, 152 Misc.2d 239, 240, 575 N.Y.S.2d 649 (County Court, St. Lawrence County, 1991). A motion for leave to reargue is addressed to the sound discretion of the trial co......
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...where the CPL does not provide a standard by which to measure compliance with a rule, it is reasonable to refer to the CPLR (People v Duquette, 152 Misc 2d 239 [St. Lawrence County Ct 1991]). In Duquette, the court relied on the provisions of the CPLR for the timely service of notices of ap......
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...390, citing People v. Fulton , 162 Misc. 2d 360, 363 n. 3, 616 N.Y.S.2d 881 [Sup. Ct., Monroe County 1994] ; People v. Duquette , 152 Misc. 2d 239, 575 N.Y.S.2d 649 [St. Lawrence City Court 1991] ; but see People v. Kyriazas , 2002 N.Y. Slip Op. 40561[U], 2002 WL 31972172 [Sup. Ct., Westche......
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