People v. Saxton

• Decision Date: 29 March 2012
• Citation: 93 A.D.3d 1077,941 N.Y.S.2d 308,2012 N.Y. Slip Op. 02347
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard T. SAXTON, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02347
93 A.D.3d 1077
941 N.Y.S.2d 308

The PEOPLE of the State of New York, Respondent,
v.
Richard T. SAXTON, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

March 29, 2012.

[941 N.Y.S.2d 309]

Harris Beach, P.L.L.C., Albany (Karl J. Sleight of counsel), for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Before: PETERS, J.P., ROSE, KAVANAGH, GARRY and EGAN JR., JJ.

EGAN JR., J.

[93 A.D.3d 1077] Appeals (1) from a decision of the County Court of Saratoga County (McKeighan, J.), dated December 9, 2010, which denied defendant's motion to stay the imposition of his sentence of imprisonment, and (2) by permission, from an order of said court, entered January 31, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant, an officer in an Internet start-up company known as Wurld Media, Inc., was charged in a nine-count indictment with—insofar as is relevant here—falsifying business records in the first degree (count 3), failure to pay benefits (count 5) and criminal contempt in the second degree (count 8). Following a jury trial, defendant was convicted of those counts and sentenced to, among other things, six months in jail.¹ Upon appeal, this Court dismissed count 5 and remitted the matter for a new trial as to count 8 and the imposition of the previously imposed sentence as to count 3 ( 75 A.D.3d 755, 907 N.Y.S.2d 316 [2010], lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 650, 939 N.E.2d 816 [2010] ).² In the interim, defendant sought various records from the Department of Taxation and Finance pursuant to the Freedom of Information Law ( see Public Officers Law § 86 et seq.) and, following receipt thereof, moved pursuant to CPL 440.10 to vacate the judgment of conviction based upon newly discovered evidence. When defendant appeared in County [93 A.D.3d 1078] Court to begin serving his sentence, defense counsel requested an adjournment—citing defendant's various health concerns. County Court denied that request and, thereafter, also denied defendant's CPL article 440 motion without a hearing. These appeals by defendant ensued.³

To the extent that defendant purports to appeal from County Court's denial of his request to adjourn the start of his sentence, we note that County Court's bench decision was not reduced to a written

[941 N.Y.S.2d 310]

order. No appeal lies from an oral decision ( cf. People v. Elmer, 84 A.D.3d 1593, 1593, 922 N.Y.S.2d 663 [2011], lv. granted 17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162 [2011]; People v. Herne, 84 A.D.3d 1589, 1590, 922 N.Y.S.2d 827 [2011] ) and, in any event, the denial of counsel's request is not appealable ( see CPL 450.10, 450.15). Notably, we did not remit this matter for a resentencing, and we previously rejected defendant's assertion that the sentence imposed was harsh and excessive (75 A.D.3d at 760, 907 N.Y.S.2d 316). Accordingly, defendant's appeal in...