Mr. Ralik Bailey has moved this court to vacate his judgment of conviction and to set aside his sentence pursuant to CPL §440.30; or, for a hearing to determine whether such judgement ". . .was obtained in violation of a statutory and Constitutional right of the defendant. (CPL §450.10; NY Const. Art. I §§ VI & XI; and USCA Const. Amend. XIV). . ."

The gist of Mr. Bailey's motion is that his appeal to the Appellate Division was dismissed as abandoned on the prosecution's motion without adequate notice to him. Mr. Bailey contends that the assistant district attorney mailed her moving papers to his grandmother's house, his alleged last known address, despite knowing that he was incarcerated at Riker's Island, thereby depriving him of adequate notice to oppose the dismissal. His respective motions for reconsideration and appeal of that dismissal before the Appellate Division and the Court of Appeals were denied. Consequently, Mr. Bailey asserts that he is proceeding by way of writ of coram nobis since "[u]pon proof, on coram nobis, that defendant's constitutional rights have been denied by obstruction of appeal, [the] judgement of conviction should be vacated and [the] case remanded for [a] new sentence nunc pro tunc, and time for appeal runs from date of new judgment" (citing, Peo. v. Lampkins, 21 NY2d 138; Peo. v. Adams, 12 NY2d 417; and Peo. v. Hairston, 10 NY2d 92).

The prosecution opposes Mr. Bailey's motion on two grounds. One, this court lacks jurisdiction to review the Appellate Division's decision to dismiss the defendant's appeal as abandoned and that court's and the Court of Appeals subsequent denials of reconsideration motions and appeals (citing, Peo. v. Bachert, 69 NY2d 593 [1987]). Put another way, CPL, Art. 440.10 motions are limited to redress trial level errors. Two, defendant's motion is meritless inasmuch as the Appellate Division does not consider appeals by one who has absconded as such person would be unavailable in the event that a new trial is granted. In addition, any application to extend the time within which to appeal must be made to the Appellate Division (citing, Peo. v. [*2]Genet, infra; and Peo. State of NY v. Bailey, NYLJ 05/10/02; p. 20; col. 6).

In reply, Mr. Bailey reiterates his earlier arguments, stressing that his coram nobis petition is intended to obtain a new trial level judgment so that he will be permitted to appeal his sentence anew.

This court in its April 29, 2002 decision in this matter (Peo. State of NY v. Bailey, supra), as noted by the prosecution, arrived at the following conclusion; to wit, that the statute of limitations for an appeal of his conviction lapsed during the period that Mr. Bailey had wilfully absconded. In addition, "[t]he Court of Appeals, in Peo. v. Genet, 59 NY 89, long ago established that an appeal by a defendant who had escaped from the jurisdiction would not be heard inasmuch as an absconding defendant is not before the court to answer further in the event that a new trial is ordered. However, CPL §460.30 provides that upon motion to an intermediate appellate court of a defendant who desires to take an appeal to such court from a judgment, sentence or order of a criminal court but. . .has failed to file a notice of appeal with the intermediate court, within the

People v. BaileyIndex No.: 1319/95Page 3

prescribed period, such intermediate appellate court. . .may order that the time for the taking of such appeal. . .be extended to a date not more than thirty days subsequent to the determination of such motion, upon the ground that the failure to so file. . . resulted from (a) improper conduct of a public servant or improper conduct, death or disability of the defendant's attorney, or (b) inability of the defendant and his attorney to have communicated, in person or by mail, concerning whether an appeal should be taken, prior to the expiration of the time within which to take an appeal due to defendant's incarceration in an institution and through no lack of due diligence or fault of the attorney or defendant. Such motion must be made with due diligence after the time for the taking of such appeal has expired, and in any case not more than one year thereafter'."

With regards to an application for an extension of the time to appeal, the legislature has relegated that duty to the appellate courts. Consequently, it is not for this court to determine whether Mr. Bailey is entitled to the relief afforded by CPL §460.30 as a result of having been incarcerated in another state during a significant portion of the time that he had warranted in this matter. He must seek that redress in the Appellate Division."

The denial of any motions before the Appellate Division and/or the Court of Appeals cannot be circumvented by this court.

WHEREFORE, on the basis of the foregoing, this Court denies Mr. Bailey's motion in all respects. This constitutes the decision and order of this Court.

____________________________________

Hon. Yvonne Lewis, J.S.C.