People v. Voutsinas

OPINION OF THE COURT Kane, J. P. By virtue of a statement (CPL 450.50) and notice of appeal dated October 8, 1976, the People sought to have us review two orders suppressing certain evidence; one was entered March 8, 1976, the other on October 5, 1976. We reversed the latter order, which had barred the use of defendant’s oral statements, but withheld a determination of the issues relating to the former order, which had suppressed items of clothing taken from his person, because it was not known whether the People’s appeal therefrom had been taken in a timely fashion (People v Voutsinas, 60 AD2d 664). On remittal it was agreed that this order had been served by mail on the People on March 5, 1976. Inasmuch as no exception or possibility of extension is provided for by statute, it follows that this portion of the appeal is untimely and must be dismissed (CPL 460.10, subd 1, par [a]). To avoid this result, the People advance a novel argument that warrants comment. It is contended that suppression orders are appealable only when they render the remaining proof legally or practically insufficient for a conviction (CPL 450.20, subd 8; 450.50, subd 1) and, since that situation did not arise until the second order was entered on October 5, 1976, the instant order did not become final for the purpose of appeal until that date. Reli [467] anee is also placed on CPLR 5501 by which an appeal from a final judgment will generally include the review of prior intermediate orders. Although not directly stated, it appears the People are apprehensive that successively erroneous orders of suppression might chip away at the case for the prosecution and yet fall beyond appellate scrutiny. It should be observed initially that the People’s position would possess some relevance only if we had affirmed the second order for, as matters now stand, the case is in exactly the same posture as it was after the first order was entered and the People concede that it did not render the proof inadequate for a conviction. Moreover, continuing with the hypothesis presented, the CPLR 5501 analogy is inappropriate for the reason that the limited right of appeal granted to the People in criminal matters does not extend to final judgments. Lastly, it is worth noting that a series of motions to suppress various types of evidence should be infrequent as the statutes contemplate an omnibus procedure (CPL 710.40; 255.20). In those unusual circumstances where separate motions and rulings occur, the apparent legislative intent to forbid interlocutory appeals by the People outweighs any potential concern that an erroneous "nonfinal” order might occasionally escape appellate correction. The appeal should be dismissed.