| People of State of New York v Heather Miller |
| Motion No: 2010-00260 wcr |
| Slip Opinion No: 2011 NY Slip Op 61435(U) |
| Decided on January 10, 2011 |
| 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. |
of the State of New York for the 9th & 10th judicial Districts
FRANCIS A. NICOLAI, P.J.
MELVYN TANENBAUM
JOHN R. LACAVA, JJ.
DECISION & ORDER ON MOTION
| The People of the State of New York, Respondent, v Heather Miller, Appellant. |
Court's own motion to strike from the general calendar an appeal from a judgment of conviction of the City Court of Mount Vernon, Westchester County, rendered September 10, 2009.
ORDERED that the motion is granted and the appeal is stricken from the general calendar, with leave to appellant, if she be so advised, to bring an application in this court to compel the filing of an amended return, within 30 days of the date this decision and order. In the event such application is made, appellant shall serve a copy of this decision and order and the supporting papers for the application upon the City Court and upon respondent. In the event that no application is made, the appeal will be subject to dismissal for failure to prosecute.
The City Court filed a return for this case without responding to appellant'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 local criminal court to file a return or amended return when the local criminal court has filed no return or a defective return. Appellant has brought no application to date seeking to compel the filing of an amended return. Accordingly, appellant, if she be so advised, may apply to this court to compel the filing of an amended return.
ENTER:
Paul Kenny
Chief Clerk