Appellant, Charles L. Lewis, Jr. moves this Court for an Order pursuant to CPL 460.30(1)(a) to allow the filing of a late Notice of Appeal and to extend the time for taking said appeal.

The grounds alleged by appellant in seeking the relief requested are set forth in appellant's moving papers and chronology as follows:

January 2, 2024 Date of Decision of Administrative Law Judge Stanton finding appellant in violation and holding him to his maximum expiration date.

January 17, 2024 Appellant files a timely Notice of Appeal in Ithaca City Court.

April 9, 2024 Ithaca City Court Judge Peacock issues a three- page Decision & Order (entered April 12, 2024) DISMISSING the appeal on lack of jurisdiction.

The motion to allow a late Notice of Appeal to be filed by appellant so that he may perfect his appeal was returnable in Elmira City Court on May 30, 2024 at 2:00 pm.

On May 28, 2024, the Department of Corrections and Community Supervision sent an email to Chief Clerk Johnson, Elmira City Court, with notice to appellant's counsel, that: "... (w)e are taking no position on the Appellant's motion to allow a late notice of appeal .... (and) ... we are prepared to rest on the papers and are not seeking oral arguments ....."

It is from this matter, as "submitted" by both parties, that the instant Decision & Order ensues.

At the outset, this Court takes note of the following:

The caption and title of appellant's notice of motion recites "Supreme Court," County of Chemung. Clearly, the instant motion is returnable in Elmira City Court, County of Chemung.

In addition, the Court finds appellant to be a nontechnical violator who can appeal to a criminal court. In the paperwork submitted, it is clear that the Division of Parole proceeded solely on count ONE—a Rule 8 violation based on appellant's criminal charge of Petit Larceny (PL 155.25—class A Misdemeanor) allegedly occurring on July 24, 2023, at approximately 7:30 pm at 40 Catherwood Road, Lansing, NY, the location of a Target store. On said date, time and [*2]place, appellant allegedly took items of clothing (dresses, shirts, pants, etc.) without properly paying for same.

It is clear that the "less is more" statute (effective August 8, 2022) provides that any decision by a hearing officer revoking parole for a charge that would constitute a misdemeanor or a felony gives to the releasee an election of remedies. The releasee/appellant may either file an administrative appeal to the Board of Parole or appeal such determination to the lowest level of the following courts serving the jurisdiction in which the hearing was held or in which any such sustained conduct was alleged to have occurred: city court, district court, county court, or supreme court, provided, however, that if any such misdemeanor or felony charge was prosecuted in any city, district, county or supreme court, such appeal shall be filed in that court. Executive Law§259(4)(a)(a).

In the instant case, the facts are not in dispute. The violation of parole and the proceedings thereto, as herein before stated, are based solely on the July 24, 2023 charge of Petit Larceny in the Town of Lansing. After the decision by the Administrative Law Judge on January 2, 2024, appellant filed a Notice of Appeal fifteen (15) days later (January 17, 2024) with Ithaca City Court. On April 9, 2024, Judge Peacock dismissed the appeal on the basis of lack of jurisdiction.

In the instant affirmation in support of late Notice of Appeal, appellant's attorney recites:

"(I) consulted with other attorneys to determine the proper venue for a parole revocation appeal .... however, I was mistaken about where to file it .... (paragraph 9)"; under CPL 460.30(1)(a), an appellate court may extend the time for taking an appeal if a party did not make a timely application where the defendant's attorney made a mistake .... if "the failure to make a timely application is the result of improper conduct of a defendant's attorney ...." (paragraph 8).

Attached hereto and made a part hereof is the Decision & Order from Judge Peacock dated April 9, 2024 and entered April 12, 2024.

In analyzing the aforementioned Decision & Order, this Court notes that BLACK'S LAW DICTIONARY contains a definition of jurisdiction as ".... A term of large and comprehensive import, and embraces every kind of judicial action; .... Areas of authority: the geographic area in which a court has power or types of cases it has power to hear....." This definition is important because the Executive Law does not contain an alternate definition for this term.

In further examining the aforesaid Decision & Order dated April 9, 2024 from Ithaca City Court, Judge Peacock opines that the term "jurisdiction" .... "refers to municipalities, and not counties. If 'jurisdiction' meant county-wide jurisdiction, then Ithaca City Court .... would hear every .... parole appeal in Tompkins County .... "

This Court disagrees with same in two important respects:

(1) The clear language of the statute indicates: ".... if any such misdemeanor or felony charge was prosecuted in any city, district, county or supreme court, such appeal SHALL be filed in that court." (Emphasis added). Clearly, for example, if an appeal is filed by a defendant from a nontechnical violation and the charges are sustained by the hearing officer for conduct that would constitute a misdemeanor or a felony - and that same defendant was actually prosecuted for that criminal charge, then the Legislature intended [*3]that the appeal goes to the court where the crime was prosecuted (regardless of the level of that court); (e.g., a defendant is prosecuted for a felony in Tompkins County, the hearing officer sustains the charges based on that criminal conduct, then the appeal goes directly to Tompkins County Court); and

(2) The focus of the aforesaid Decision & Order is on the definition of "jurisdiction" and yet the statute reads that the defendant may ".... appeal .... to the lowest level of the following courts SERVING THE JURISDICTION .... in which any such sustained conduct was alleged to have occurred ....." (Emphasis added.). Judge Peacock ruled that Ithaca City Court did not have jurisdiction over this appeal, specifically finding that: ".... Ithaca City Court does not serve the jurisdiction (Lansing)."

This Court respectfully disagrees with the aforesaid finding. The definition of "jurisdiction" as contained in Black's Law Dictionary points to a geographic area in which a court has power to hear a case. All justice courts (e.g., Lansing Town Court), city courts, supreme courts, county courts located in Tompkins County serve in that jurisdictional geographic area.Consequently, this Court finds that any criminal conduct handled by a justice court, said conduct then becoming the basis for a sustained revocation of parole, followed by an appeal, first would go to the City Court in that area (if there is one).

In the instant case, therefore, this Court finds that not only was the Notice of Appeal properly filed by appellant in a timely manner but also same was filed with a court of competent jurisdiction. The sustained conduct allegedly occurred in the TOWN OF LANSING, Tompkins County. Ithaca City Court serves that jurisdiction, and it is the lowest level court serving same. This court finds, accordingly, in the first instance, that the instant motion requesting permission to file a late Notice of Appeal is moot given that same was properly and timely filed in Ithaca City Court.

Even if this Court's Decision & Order is in error, it is clear from a plain reading of the statute that this matter also can be appealed to the lowest level court serving the jurisdiction where the parole revocation hearing was held; i.e., Elmira, NY. Elmira City Court is the lowest level court and it also has jurisdiction to entertain this Appeal. Noting that the Department of Corrections and Community Supervision takes no position on the relief requested by appellant, this Court GRANTS appellant's application to file a late Notice of Appeal based on findings made by this Court consistent with the assertions made by appellant in the moving papers. Appellant is directed to serve and to file the late Notice of Appeal within thirty (30) days of today's date and to take all necessary steps to immediately perfect the appeal in this Court.

This constitutes the Decision & Order of the Court.