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The People of the State of v. Carol Elmer

State of New York Supreme Court, Appellate Division Third Judicial Department


August 23, 2012

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,
v.
CAROL ELMER, RESPONDENT.

Appeal (upon remittal from the Court of Appeals) from an order of the County Court of St. Lawrence County (Richards, J.), dated May 4, 2010, which partially granted defendant's motion to dismiss the indictment.

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: March 22, 2011

Before: Mercure, J.P., Rose, Malone Jr., Stein and Egan Jr., JJ.

When this appeal was previously before this Court, we dismissed the People's appeal upon the finding that no appeal lies from an oral ruling issued by a criminal court dismissing some counts of the indictment (84 AD3d 1593 [2011]). The Court of Appeals reversed and remitted the matter to this Court (19 NY3d 501 [2012]).

The Court of Appeals declared that "it is sound policy to permit such appeals [from oral orders] so long as they are taken, in accordance with the appropriate governing criminal statute, from an oral order that conclusively disposes of the matter at issue" (id. at 508 [footnote omitted]). The Court stated that adopting this policy, among other things, "provides a clear signal to the respective parties as to when the time to appeal certain orders commences" (id. at 508-509). Thus, we now must find that, in this case, the People were permitted to appeal from County Court's oral ruling that dismissed counts of the indictment (see CPL 450.20 [1]; see also id.). Further, we must also find that the People's time to appeal from that oral ruling commenced on the day that it was issued by County Court. Inasmuch as the People filed and served their notice of appeal from the oral ruling more than 30 days later (see CPL 460.10 [1]), we lack jurisdiction to consider the merits of this appeal and must dismiss it.

Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur.

ORDERED that the appeal is dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120823

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