The People of the State of New York, Respondent, v. Paul Phillips, Appellant

The People of the State of New York, Respondent, v. Paul Phillips, Appellant. First Department, February 11, 1927. Crimes — appeal — defendant was convicted before Magistrate's Court of city of New York, which conviction was affirmed by Appellate Part of Court of Special Sessions — under Code of Criminal Procedure, § 520, no appeal lies to Appellate Division — appeal to Court of Appeals may be had on permission from judge of that court. The defendant, who was convicted before a Magistrate’s Court in the city of New York and whose conviction was affirmed by the Appellate Part of the Court of Special Sessions, cannot, under section 520 of the Code of Criminal Procedure, appeal to’ the Appellate Division, and his motion for permission to do so is denied. Under said section an appeal may be taken to the Court of Appeals upon permission granted by a judge of that court. Motion on behalf of the People of the State of New York for reargument of defendant’s motion for leave to appeal from a judgment of the Court of Special Sessions, Appellate Part, rendered October 7, 1926, affirming a judgment of conviction of the Magistrate’s Court, Seventh District, Borough of Manhattan. Edward V. Loughlin, for the motion. Charles Solomon, opposed. [MAJORITY — Per Curiam.] Per Curiam. We think that under section 520 of the Code of Criminal Procedure, where the one appeal allowed as of right in a criminal action has been had as in this case, to the Appellate Part of the Court of Special Sessions, an application for a further appeal to the Court of Appeals as permitted by that section should not be made to the Appellate Division, which has never passed upon the questions involved, or to a justice thereof, but should be made directly to a judge of the Court of Appeals. Where, however, the Appellate Division has heard and determined an appeal in a criminal action, an application for • a further appeal may be properly made either to a judge of the Court of Appeals or to a justice of the Appellate Division in the department in which the conviction was had. The motion should, therefore, be granted, and the order of this court entered herein on January 14, 1927 (See 219 App. Div. 352) vacated anil the application for leave to appeal to this court denied, leaving the defendant, if he be so advised, to apply to a judge of the Court of Appeals for a certificate that a question of law is involved which ought to be reviewed by the Court of Appeals. Present — Dowling, P. J., Finch, McAvoy, Martin and O’Malley, JJ. Motion for reargument granted, order of January 14, 1927, vacated, and motion for leave to appeal to this court denied.