| People of State of New York v Victor M. Cruz |
| Motion No: 2011-00990 qcr |
| Slip Opinion No: 2013 NY Slip Op 65036(U) |
| Decided on February 15, 2013 |
| 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 2nd, 11th & 13th judicial Districts
MICHELE WESTON, J.P.
THOMAS P. ALIOTTA
MARTIN M. SOLOMON, JJ.
DECISION & ORDER ON MOTION
| The People of the State of New York, Appellant, v Victor M. Cruz, Respondent. |
Motion by respondent to dismiss as untimely an appeal from orders of the Criminal Court of the City of New York, Queens County, dated August 30, 2010 and February 7, 2011, respectively.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied.
Respondent, who was charged with two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01), unlawful possession of marijuana (Penal Law § 221.05), and driving a motor vehicle with an inoperable stop lamp (Vehicle and Traffic Law § 375 [40]), moved to suppress the physical evidence as the fruits of an illegal search. After a Mapp hearing on April 4, 2010, J.H.O. Cesar Quinones recommended the denial of respondent's motion to suppress. On July 27, 2010, Judge Toko Serita issued an oral decision rejecting the J.H.O.'s recommendation and granting respondent's motion to suppress the physical evidence. Judge Serita informed the parties that a written decision would follow his oral ruling. The written decision and order was issued dated August 30, 2010.
Appellant moved for reargument on October 29, 2010, and respondent opposed. By decision and order dated February 7, 2011, Judge Serita granted reargument but indicated that he would adhere to his original ruling granting suppression of the physical evidence. In his decision, Judge Serita noted that the reargument motion was timely since there was no indication in the record that respondent had ever served a copy of the August 30, 2010 order upon appellant.
On March 23, 2011, appellant filed a notice of appeal, pursuant to CPL 450.10, from the orders dated August 30, 2010 and February 7, 2011.
CPL 460.10 (1) (a) "require[s] prevailing party service in order to commence the time for filing a notice of appeal" (People v Washington, 86 NY2d 853 [1995]). Here, as in Washington, no evidence was presented as to the date on which respondent, the prevailing party in the trial court, served the February 7, 2011 order on appellant and, in fact, no evidence was presented that there was ever such service. Thus, the notice of appeal was timely. Despite appellant's contention to the contrary, People v Elmer (19 NY3d 501 [2012]) is distinguishable from the case herein since, in that case, the appeal originated from oral orders, whereas, here, both orders appealed from were written.
ENTER:
Paul Kenny
Chief Clerk