Opinion
January 25, 1994
Appeal from the Supreme Court, Bronx County (Barry Salman, J.).
Initially, we note that these particular defendants, who are not in an adversarial position to the plaintiff, are inappropriate parties against whom to seek declaratory relief.
As the IAS Court noted, quite aside from whether the instant declaratory judgment action is a proper vehicle for testing the constitutionality of CPL 450.10 and 450.15 Crim. Proc. insofar as they limit a defendant's right to appeal from the denial of CPL 440.10 motion (see, Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, cert denied 464 U.S. 993), recent precedent in this Department squarely holds that such an order is not final but intermediate in nature, and, as such, the Legislature may constitutionally impose conditional limitations on the right of appeal (People v Thomas, 183 A.D.2d 457, lv denied 80 N.Y.2d 934; accord, People v Ghee, 153 A.D.2d 954 [2d Dept], lv denied 76 N.Y.2d 735; People v Simmonds, 182 A.D.2d 650 [2d Dept], lv denied 80 N.Y.2d 910).
Concur — Rosenberger, J.P., Wallach, Kupferman, Ross and Tom, JJ.