People v. Washington

• Decision Date: 01 November 1994
• Parties: The PEOPLE of the State of New York, Appellant, v. Robert WASHINGTON, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 32

618 N.Y.S.2d 32

209 A.D.2d 162

The PEOPLE of the State of New York, Appellant, v. Robert WASHINGTON, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Nov. 1, 1994.

Before SULLIVAN, J.P., and CARRO, KUPFERMAN, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Richard Lee Price, J.), entered January 28, 1993 which, inter alia, granted defendant's motion for inspection of the grand jury minutes and, upon inspection, dismissed indictment no. 7575/92 for insufficiency of evidence, unanimously reversed, on the law, the indictment reinstated, and the matter remanded to the Supreme Court for further proceedings.

Upon examination of the grand jury minutes, the Supreme Court dismissed the indictment charging defendant with the crimes of criminal possession of a weapon in the third and fourth degrees (Penal Law §§ 265.02[4], 265.01[1] because no evidence was presented to the grand jury concerning defendant's "possession, or lack thereof, of a license for the recovered gun." In People v. Kohut, 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312, the Court of Appeals stated: "Essential allegations [in indictments] are generally determined by the statute defining the crime. If the defining statute contains an exception, the indictment must allege that the crime is not within the exception. But when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense."

The statutory exemption of licensed persons from prosecution for criminal possession of a weapon is not found in the two sections of the Penal Law defining criminal possession of a weapon in the third and fourth degrees. Rather, the exemption is found in a different statute, Penal Law § 265.20(a)(3). Accordingly, the evidence before the grand jury was not legally insufficient merely because it did not establish prima facie that the defendant had no license for the revolver in question (People v. Kohut, supra; see, People v. LaPorta, 50 A.D.2d 1007, 376 N.Y.S.2d 698).

The defendant argues that the People's appeal should be dismissed because they filed their notice of appeal March 1, 1993, more than 30 days after entry of the order appealed from. CPL 460.10(1)(a) provides as here pertinent that a party seeking to appeal from an order must file a notice of appeal "within thirty days after service upon such party of a copy of an order not included in a judgment[.]" Thus the time within which the People had to serve their notice of appeal began running not from the date the order was entered, or the date that People received actual notice of the order, but rather from the date of "service" of a copy of the order. It has been held that service of the order must include notice of entry (People v. Mullins, 103 A.D.2d 994, 479 N.Y.S.2d 820 [3d Dept.1984], but we find no basis for that requirement in the statute (compare CPL 460.10[1][a], which requires service of a "copy of an order," with CPLR 5513[a], which...