In the Matter of Robert M. Morgenthau, Appellant, v. Honorable Ernst
Rosenberger, &c., et al., Respondents.
86 N.Y.2d 826, 657 N.E.2d 494, 633 N.Y.S.2d 473
September 21, 1995
1 No. 328 SSM 62 (1995 NY Int. 204)
Decided September 21, 1995
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Mark Dwyer, for Appellant.
Submitted by Arnold D. Fleischer, for Respondent judge.
Submitted by Edward M. Shaw, for individual Respondent.
MEMORANDUM:
The judgment of the Appellate Division should be affirmed, without
costs.
The taking of an appeal is a jurisdictional prerequisite to the
consideration of a CPL 460.50 application for bail pending appeal. A
Judge to whom a CPL 460.50 application is made has no authority to
consider such an application unless the defendant has established that
an appeal was taken from the judgment or sentence. A post-sentence
application is void and of no effect when the prerequisite appeal has
not been established. Thus, it cannot be considered an "application"
within the meaning of CPL 460.50(3).
Therefore, the defendant's February 7, l995 request to a Justice of
the Supreme Court to set bail pending appeal to the Appellate
Division, made immediately following his sentencing, was ineffective
because it antedated the notice of appeal filed on February 9, l995.
Consequently, the subsequent application to a Justice of the Appellate
Division was a first application under CPL 460.50 and was properly
entertained.
* * * * * * * * * * * * * * * *
On review of submissions pursuant to section 500.4 of the Rules,
judgment affirmed, without costs, in a memorandum. Chief Judge Kaye
and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick
concur.
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
for Respondent judge.
Submitted by Edward M. Shaw, for individual Respondent.
The taking of an appeal is a jurisdictional prerequisite to the consideration of a CPL 460.50
A Judge to whom a CPL 460.50 application is made has no authority to consider such an
A post-sentence application is void and of no effect when the prerequisite appeal has not
it cannot be considered an "application" within the meaning of CPL 460.50.
Therefore, the defendant's February 7, l995 request to a Justice of the Supreme Court to set
the subsequent application to a Justice of the Appellate Division was a first application
On review of submissions pursuant to section 500.4 of the Rules, judgment affirmed, without
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
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