Summary
In Silva, the First Department found defendants' claim that the appeal was "procedurally flawed" pursuant to CPLR 2220 invalid because the People were not required to serve a copy of the written order as a prerequisite to appeal where the order was entered orally on the record (Silva at 750).
Summary of this case from People v. MerlyOpinion
August 28, 1986
Appeal from the Supreme Court, New York County (Neco, J.).
The convictions arose from defendants' attempts to burglarize a 1981 Dodge van of approximately 1 1/2 tons' capacity, used to transport cargo to and from the city's airports. The trial court set aside the convictions on the ground that the van did not fall within the definition of a "building" set forth in Penal Law § 140.00 (2). The Court of Appeals has since held that such a van "meets the statutory definition of a building because it may be considered either an 'inclosed motor truck' or a vehicle used for 'carrying on business therein'." (People v Mincione, 66 N.Y.2d 995, 997.)
Defendants' motion to set aside the verdict was made orally and the court ruled orally on the record. Defendants claim the appeal is "procedurally flawed" under CPLR 2220 because defendants' counsel was not served with copies of the orders. The claim has no validity as the CPLR has no application to criminal actions and proceedings (see, CPL 1.10). The People are not required to serve a written order as a prerequisite to appeal where the order has been entered on the record (see, People v Price, 67 A.D.2d 990).
Concur — Kupferman, J.P., Fein, Lynch, Milonas and Ellerin, JJ.
The court did not disturb the verdict convicting defendant Efrain Silva of possession of burglar's tools, for which he was sentenced to one year's imprisonment. That conviction is not the subject of these appeals.