| People of State of New York v Elliott Malone |
| Motion No: 2007-01014 ORCR |
| Slip Opinion No: 2008 NYSlipOp 83234(U) |
| Decided on August 26, 2008 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
| THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ELLIOTT MALONE, Appellant. |
DECISION
On the court's own motion, the matter is stricken from the general calendar, with leave to appellant, if he be so advised, to bring an application in this court to compel the filing of an amended return, within 30 days of the date of the order hereon. In the event such application is made, appellant shall serve a copy of the order hereon, the affidavit of errors and the supporting papers for the application upon the court below and upon the respondent. In the event that no application is made, the case will be subject to dismissal for failure to prosecute.
The court below filed a return for this case, involving a conviction for the traffic infraction of speeding, without responding to defendant's affidavit of errors (see CPL 460.10 [3] [d]). Thus, the record is inadequate for appellate review. CPL 460.10 (3) (e) states that "upon application of the appellant," the appellate court must order the court below to file a return or amended return when the court below has filed no return or a defective return. Defendant has brought no application to date seeking to compel the filing of an amended return. Accordingly, defendant, if he be so advised, may apply to this court to compel the filing of an amended return.