People v. Debiase — 138 N.Y.S. 879

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p. 879

PEOPLE v. DEBIASE.

(Supreme Court, Appellate Division, First Department.

December 27, 1912.)

Headnote

Criminal Law (§ 1106*)—Appeal—Filing Record—Extending Time.

Under Code Or.- Proc. § 45S, as amended by Laws 1911, c. 667, § 2, requiring appellant within 30 days after notice of appeal to print and file

♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

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the record on appeal, or the appeal will be dismissed, unless the Appellate Division shall for good cause shown extend the time, the Appellate Division may not extend the time, except on facts presenting an excuse; and on a motion to dismiss some fact which excuses the default must be presented, and the mere statement in the affidavit of the attorney for appellant that he had made diligent effort to perfect the appeal is insufficient.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2890-2892; Dec. Dig. § 1106.*]

«For other cases see same topic & § kumbeb in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from Special Term, New York County.

Raphael Debíase was convicted of crime, and appealed. _ On motion to set aside an order dismissing the appeal and permitting defendant to file the necessary copies of the printed papers. Denied.

Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.

Moses A. Sachs, of New York City, for appellant,

Louis Fabricant, of New York City, for respondent.

The defendant was convicted of the crime of robbery, and judgment was entered on May 2, 1912. The notice of appeal was served on May 31, 1912. The time for the defendant to file the printed copy of the record was 30 days from the service of the notice of appeal. Section 458 of the Code of Criminal Procedure, as amended by Laws 1911, c. 667, § 2. On' October 22, 1912, the district attorney served a notice of motion to dismiss this appeal, which the defendant did not oppose, and the motion was therefore granted by default, and the appeal dismissed. On December 20, 1912, the defendant made this-motion.

There was absolutely no excuse why the record was not filed within the time specified by this section of the Code of Criminal Procedure. The only statement is that contained in the affidavit of the attorney for the defendant that he had “made all due and diligent effort to perfect the appeal herein.” Section 458 of the Code of Criminal Procedure, as amended by Laws 1911, c. 667, § 2, provides that:

“Within thirty days after the service of a notice of appeal the appellant shall procure to be printed as required by the general rules of practice the record upon which the appeal is to be heard and cause the same to be filed with the clerk of the Appellate Division of the Supreme Court in which the appeal is to be heard duly certified by the clerk of the court in which the conviction was had. If the printed copy of the record so certified is not filed within the time hereinbefore specified the district attorney may move to dismiss the appeal upon four days’ notice to the adverse party and such appeal shall be dismissed unless the Appellate Division of the Supreme Court shall for good cause shown by order extend the time for filing the printed papers so certified as aforesaid.”

To justify this court in extending the time to file the printed papers, it is essential that good cause be shown, viz., facts presented to excuse the default. It is essential for the proper administration of the criminal law that these appeals should be promptly disposed of, and unless the papers in opposition to a motion to dismiss the

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appeal present some fact which excuses the default, this court is not justified _in extending the time within which the provision of the Code is to be complied with.

Upon this application there is no cause shown, and the motion must therefore be denied.