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The Issue of Appealability: An Order Modifying The Conditions Of A Sentence Is Not Appealable.


People v. Pagan 2012 NY SLip Op 04278

Decided June 5, 2012 New York Court of Appeals  

Issue: Whether a defendant can appeal from an order modifying the conditions of a sentence of probation.  The issue addressed by the Court of Appeals is an important one because it directly addresses the issue of appealability of a criminal case.

Holding: The Court of Appeals concluded that an appeal must be authorized by statute and that the appeal in this case was not authorized by the Criminal Procedure Law.   Such statutory authorization is a jurisdictional requirement for an appellate court.  The Court of Appeals found that, in this case, judicial review should have been sought in a CPLR article 78 proceeding.

Facts: Pagan pleaded guilty to one count of criminal possession of a weapon in the third degree. Defendant was sentenced in 2008 to six months in jail and five years of probation. Probation applied to the court to enlarge the conditions of defendant’s probation under to authorize searches of defendant’s home.

Supreme Court granted the application without addressing appealability, a divided Appellate Division affirmed.

Legal Analysis: It is well established that “[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute”. We have emphasized that criminal appeals are thereby “limited”, and that “[c]ourts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of statutes. This is especially so in one of the most highly structured and highly particularized articles of procedure — appeals”

CPL article 450 governs the appealability of orders in criminal proceedings. Analysis begins with CPL 450.10, which “codifies a criminal defendant’s common-law right to appeal to an intermediate appellate court”. As relevant to this case, CPL 450.10 (2) allows a defendant to appeal from a “sentence” as prescribed by CPL 450.30 (1). CPL 450.30 (1), in turn, provides that a defendant may appeal from a sentence on the basis that it is “invalid as a matter of law” or “harsh or excessive.”

Significantly, CPL 450.30 (3) further specifies that an appeal from a sentence pursuant to CPL 450.10 (2) can have only one of two meanings. First, an appeal lies from “the sentence originally imposed” (CPL 450.30 [3]). Alternatively, a defendant may appeal from “a resentence following an order vacating the original sentence” (id.). Hence, an appeal predicated on CPL 450.10 (2) that is not taken from either a sentence or a resentence must be dismissed.

In this case, the order modifying the conditions of defendant’s sentence of probation does not fit either of these statutory categories. It was not the sentence originally imposed. Nor did the court “vacat[e] the original sentence” and impose a resentence. Rather, the court altered the conditions of probation pursuant to CPL 410.20 (1), which authorizes a court to “modify or enlarge the conditions of a sentence of probation.” Because the January 2009 modification order was not a “sentence” within the meaning of CPL 450.30 (3), there is no statutory basis for defendant to pursue an appeal.

Defendant could have brought a CPLR article 78 proceeding in the nature of prohibition to challenge the modification of the conditions of his sentence of probation on the ground that the court lacked the power to modify as it did. Consequently, the proper vehicle to have challenged Supreme Court’s January 2009 modification order was an article 78 proceeding, not a direct appeal.


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