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People v. Trezza

39 N.Y. St. Rep. 879 Court N.Y. Gen. Term Decision date 1891-07-02 English

Delivered by Barnard, P. J.

Contents

Majority

p. 879
The People, Resp’ts, v. Nicola Trezza, App’lt.
(Supreme Court, General Term, Second Department,
Filed July 2, 1891.)

Headnote

Appeal—New trial—Criminal law.
An appeal will not lie from an order denying a motion for a new trial in a criminal case made after judgment unless the proceedings are embodied in the judgment roll.
Appeal from order denying motion for a stay of proceedings.
The defendant was convicted of murder in the first degree at a court of sessions of Kings county on the 6th of June, 1890. His sentence was stayed by an appeal to the court of appeals, where the judgment was affirmed.
On the 6th March, 1891, defendant was resentenced to die during the week beginning Monday, the 20th April, 1891.
On the 8th day of April a motion was made before the court of sessions for a new trial on the ground of newly discovered evidence ; this motion was denied, and an appeal taken to the general term of the supreme court.
On the 14th day of April application was made to Judge Pratt' for a stay of the execution and proceedings under the sentence until the appeal from the order of the court of sessions could be heard. The motion for a stay was denied, on the ground that the order of the court of sessions denying the motion for a new trial on the ground of newly discovered evidence was not appealable.
A. H. Dailey, for app’lt; James W. Bidgway (John F. Clarke, of counsel), for resp’ts.

—The defendant was convicted of murder in the first degree. He made an application for a new trial on the ground of newly discovered evidence, and the same was denied.

An appeal was taken to the general term, which is still pending. A stay during the appeal was denied because no appeal was proper from the decision denying the new trial.

The point is decided by the. general term in People v. Hovey, 30 Hun, 357 .

Appeals in criminal cases are provided for, but no provision is made for a review of an order denying a motion for a new trial made after judgment, unless the proceedings are embodied in the judgment roll.

The order should, therefore, be affirmed.

Dykman, J., concurs; Pratt, J., not sitting.