44 NY2D 759 - People v. Thomas

How this case has been cited

Cited by 3 later decisions — most recently July 2003

1 federal appellate ·

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1 OPINION OF THE COURT

¶2 Memorandum.

¶3 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). * 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).

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

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

¶6 Appeal dismissed in a memorandum.

¶7 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).