People v. Smith — 138 N.Y.S. 898

Majority

p. 898

PEOPLE v. SMITH.

(Supreme Court, Appellate Division, First Department.

December 27, 1912.)

Headnote

Criminal Law (§ Í069*)—Appeal—Time por Filing Papers—Dismissal.

Where appellant procures a certificate of reasonable doubt, and fails to comply with Code Cr. Proc. § 458, requiring appeal papers to be filed within 30 days in the Appellate Division of the Supreme Court, or that an extension of time be had, or that he show any excuse for his default, the appeal will not be entertained, unless he stipulates to vacate the certificate of reasonable doubt and files the appeal papers within a time fixed by the Appellate Division.

[Ed. Note.—For other cases, see Criminal .Law, Cent. Dig. §§ 2691-2699; Dec. Dig. § 1069.*]

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

Appeal from Trial Term, New York County.

Thomas E. Smith was convicted of crime, and he appeals. Motion to dismiss appeal granted, unless appellant complies with terms prescribed.

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

L. Fabricant, of New York City, for the motion.

Wm. Armstrong, of New York City, opposed.

Section 458 of the Code of Criminal Procedure 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

p. 899

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.”

The time within which to file the papers upon which the appeal was to be heard expired on the 15th of December. The appellant has failed to file the printed record within the time fixed by the section of the Code above referred to, and no reasonable excuse is presented for failing to comply with the express requirement of the Code. The defendant obtained a certificate of reasonable doubt, and if for any reason he had been unable to have his case printed and filed within the time allowed he should have obtained an order extending his time. This court has repeatedly held that in a case in which a certificate of reasonable doubt is issued the provision of this section of the Code will be strictly enforced. Nothing in the affidavit submitted excuses the default. No facts are presented which would indicate that the papers could not have been printed in time.

The motion will therefore be granted, and the appeal dismissed, unless the defendant stipulates to vacate the certificate of reasonable doubt within 10 days from the entry of the order, and has the record printed and filed in this court, with the appellant’s points, on or before the 21st day of January, 1913.