Hyperlawhypertext legal database People v. Goldberger 219 A.D. 259

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People v. Goldberger

219 A.D. 259 Court First Department, Decision date 1927-02-04 English

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p. 259
The People of the State of New York, Respondent, v. William Goldberger, Appellant.
First Department,
February 4, 1927.

Headnote

Crimes — appeal — conviction of defendant before city magistrate of city of New York was affirmed by Appellate Part of Court of Special Sessions — under Code of Criminal Procedure, § 520, as amd. by Laws of 1926, chap. 465, no appeal lies to Appellate Division — notice of appeal was not dated until after amendment took effect and appeal is governed thereby.
The. defendant, who was convicted before a city magistrate of the city of New York, and whose conviction was affirmed by the Appellate Part of the Court of Special Sessions, did not have a right to appeal from the judgment of affirmance, for, under section 520 of the Code of Criminal Procedure, as amended by chapter 465 of the Laws of 1926, an appeal does not lie from a judgment of affirmance by the Appellate Part of the Court of Special Sessions to the Appellate Division.
Though the judgment of affirmance was rendered prior to the time the amendment took effect, the notice of appeal to the Appellate Division was dated thereafter, and, therefore, the amendment is operative.
Appeal by the defendant, William Goldberger, from a judgment of the Appellate Part of the Court of Special Sessions of the City of New York, rendered on the 23d day of June, 1926, affirming a judgment of the City Magistrates’ Court of the City of New York, Fourth District, Borough of Manhattan, convicting him of the crime of disorderly conduct.
Maurice Bloch of counsel [John A. Mullen with him on the brief; Mullen & Bloch, attorneys], for the appellant. .
Michael J. Driscoll, Deputy Assistant District Attorney, of counsel [Joab H. Banton, Distric' Attorney], for the respondent.

The amendment of section 520 of the Code of Criminal Procedure by chapter 465 of the Laws of 1926 grants to every convicted defendant in a criminal action a right of appeal, but provides that there shall be only one such appeal “ and the decision of the appellate court sha 1 be final, and no appeal shall lie from that court to any other court except as hereinafter provided.” It further provides that appeals in the city of New York from a conviction by a city magistrate shall be to the Appellate Part of the Court of Special Sessions, and that where such an appeal has been taken, “ a further right of appeal to the Court of Appeals shall lie as hereinafter prescribed, but not otherwise; ” and that such appeal to the Court of Appeals may be allowed only on a certificate from a judge of the Court of Appeals or a justice of the

p. 260
Appellate Division of the department in which such. conviction was had. Under this amendment no appeal can be taken to the Appellate Division from a judgment of affirmance in the Appellate Part of the Court of Special Sessions in the city of New York.

The amendment became effective on July 1, 1926. While the judgment of affirmance in the Court of Special Sessions was rendered on June 23, 1926, the notice of appeal to the Appellate Division is dated July 21, 1926. The appeal is, therefore, governed by the provisions of chapter 465 of the Laws of 1926. (Croveno v. Atlantic Ave. R. R. Co., 150 N. Y. 225 .)

It follows that the appeal should be dismissed.

Present — Dowling, P. J., Mebbell, Mabtin, O’Malley and Pboskaueb, JJ.

Appeal dismissed.

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