Opinion
Argued September 16, 1975
Decided September 24, 1975
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ABRAHAM J. GELLINOFF, J., JOSEPH SULLIVAN, J.
Julia P. Heit for Ernest Welcome, appellant.
Michael Washor and Arnold E. Wallach for Winston Holmes, appellant.
Mario Merola, District Attorney (Jane Bilus Gould and Stephen R. Bookin of counsel), for respondent.
MEMORANDUM. Both defendants appeal from orders affirming their convictions. In addition, the defendant Welcome appeals from an Appellate Division order affirming an order of the trial court denying a motion for a new trial.
As regards the latter appeal in the case of People v Welcome, the order denying the motion for a new trial was properly affirmed by the Appellate Division. By statute (CPL 440.10, subd 1, pars [g], [h]) a motion of this nature is addressed to the discretion of the Trial Judge. Under all the circumstances of this case — taking into account the nature of the trial proof, the substance of the witness' testimony and the circumstances surrounding the alleged recantation, which were fully developed in the moving papers — we cannot say that the Trial Judge abused his discretion in denying the motion without a hearing (People v Shilitano, 218 N.Y. 161).
The remaining appeals in both cases should be dismissed. In criminal cases there is no appeal as of right unless the death penalty has been imposed (NY Const, art VI, § 3). In all other criminal cases, "the appellant must make application, pursuant to section 460.20, for a certificate granting leave to appeal to the court of appeals" (CPL 460.10, subd 5, par [a]). When the application is submitted to this court, current law requires that it be made to the Chief Judge who "must then designate a judge of such court to determine the application" (CPL 460.20, subd 3, par [b]). The decision of the Judge so designated must be considered final (People v Kahn, 291 N.Y. 663; People v McCarthy, 250 N.Y. 358, 362; Cohen and Karger, Powers of the New York Court of Appeals, p 718, n 70). Moreover, the application for reconsideration in the Holmes case was made 14 months after denial and nearly a year after the Judge, originally designated, had left this court.
Similarly, in the Welcome case, the application was made nearly two years after denial and three months after the Judge who originally denied leave, had left this court.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in a memorandum.
On defendants' appeals from orders of the Appellate Division, First Department, which affirmed judgments of conviction: appeals dismissed.
On defendant Welcome's appeal from an order of the Appellate Division, First Department, which affirmed an order denying a motion for a new trial: order affirmed.