Claimant William Anthony Evans moves for summary judgment in his favor and
defendant cross-moves for summary judgment dismissing Mr. Evans’ claim, in
which it is alleged that defendant caused claimant to lose his right to seek
leave to appeal a decision denying his CPL §440.20 motion on an underlying
criminal case. In an August 22, 2006 Decision, Order & Judgment, the Hon.
Ronald A. Zweibel denied claimant’s CPL §440.20 motion. Claimant
argues that defendant thereafter caused him to lose his right to seek leave to
appeal that decision, because it failed to comply with New York Rules of Court
§606.5(c). Such provides in relevant part that if a pro se criminal
defendant wishes to seek leave to appeal an order denying a CPL §440.20
motion, and he requests in writing within 30 days after service upon him of a
copy of such order, the clerk of the court shall serve a copy of such request
for leave to appeal upon the district attorney and shall transmit the request
and the record to the appellate court.
Claimant made such a request in a September 18, 2006 letter to the Clerk of the
New York County Supreme Court, but it appears that initially, a notice of
appeal, rather than an application for leave to appeal, was filed on his behalf
on September 26, 2006. In any event, it is apparent that at some point, the
appellate court became aware of claimant’s request for leave to appeal, as
a series of correspondence ensued between claimant and David Spokony, Deputy
Clerk of the Supreme Court, Appellate Division, First Department. In two
letters, Mr. Spokony advised claimant that in connection with his application
for leave to appeal, he must provide a copy of Judge Zweibel’s decision
and an affidavit explaining why he believed Judge Zweibel had made an error.
Claimant does not dispute that he failed to file the papers requested by Mr.
In an affidavit submitted on defendant’s cross-motion, Mr. Spokony,
citing CPL §460.15(1) and New York Rules of Court §§600.3(b)(2)
and 600.8(d), explains that it is the policy of the Appellate Division, First
Department to place a motion for leave to appeal on the motion calendar upon
receipt of an affidavit stating the questions of law or fact at issue and a copy
of the underlying decision. Mr. Spokony also states that following the filing
of these motions, the First Department determined that it would overlook
claimant’s “defects” in failing to provide the requested
documents (while still giving him the opportunity to submit them), and that his
application for leave to appeal had been calendared for November 28, 2007.
The essence of Mr. Evans’ claim is that defendant caused him to lose his
right to seek leave to appeal. He now concedes that such motion was in fact
calendared. In view of the foregoing, having reviewed the
, IT IS ORDERED that motion no.
M-73927 be denied, that cross-motion no. CM-74172 be granted and that claim no.
113717 be dismissed.