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People v. Thomas

44 N.Y. 759 Court N.Y. Decision date 1978-04-25 English

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p. 759
The People of the State of New York, Respondent, v James Thomas, Appellant.
Argued March 23, 1978;
decided April 25, 1978
p. 760
APPEARANCES OF COUNSEL
Arthur J. Giacalone and Pierce Gerety, Jr., for appellant.
Curtis L. Lyman, District Attorney, for respondent.
Louis J. Lefkowitz, Attorney-General (Jean M. Coon and Frederick R. Walsh of counsel), in his statutory capacity under section 71 of the Executive Law.

OPINION OF THE COURT

Memorandum.

An appeal from an order of an intermediate appellate court granting or denying an application for an extension of time in which to take an appeal may be entertained by this court only if the "order states that the determination was made upon the law alone” (CPL 460.30, subd 6).[1] The order here does not contain such a recital. Therefore, since the possibility that the Appellate Division’s decision was premised on an exercise of discretion cannot be excluded, the appeal must be dismissed (see People v Calabur, 178 NY 463 , 464; People v O’Brien, 164 NY 57 , 58).

We also note that, no leave having been sought to appeal from the earlier order which had vacated the appointment of

* The statute also provides that only a Judge of the Court of Appeals may issue a certificate permitting such an appeal (CPL 460.30, subd 6).

p. 761
counsel on the ground that no appeal had been taken to the Appellate Division, the defendant’s contentions relating to that order may not be considered by us (see CPL 470.60, subd 3).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Appeal dismissed in a memorandum.

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