
    SUPREME COURT—APP. DIVISION—FIRST DEPT.,
    December 27, 1912.
    THE PEOPLE v. RAPHAEL DEBIASE.
    (154 App. Div. 128.)
    Appeal—Dismissal of, in criminal action—Failure to file record—■ Failure to excuse default.
    A dismissal of an appeal entered on the default of a defendant in a , criminal action in filing the printed record within thirty days as required by section 458 of the Code of Criminal Procedure, should not be set aside unless facts are presented which excuse the default. A mere allegation of the defndant’s attorney' that he “ made all due and diligent effort to perfect the appeal” does not excuse the default.
    Motion to set aside an order of this court entered on the 13th day of December, 1912, dismissing the appeal and permitting the defendant to file the necessary copies of the printed papers.
    
      Moses A. Sachs, for the appellant.
    
      Louis Fabricant, for the respondent.
   Per Oueiam:

The defendant was convicted of the crime of robbery and judgment was entered on May 2, 1912. The notice of appeal was served on May 31, 1912. The time for the defendant to. file the printed copy of the record was thirty days from the service of the notice of appeal. (Code Crim. Proc., § 458.) On October 22, 1912, the district attorney served a notice of motion to dismiss this.appeal which the defendant did not oppose, and the motion was, therefore, granted by default and the appeal dismissed. On December 20, 1912, the defendant made this motion. There was absolutely no excusé why the record was not filed within the time specified by this section of the Code of Criminal Procedure. The only statement is that contained in the affidavit of the attorney for the defendant that he had “ made all due and diligent effort to perfect the appeal herein.” Section 458 of the Code of Criminal Procedure provides that “ Within thirty days after the service of a notice of appeal the appellant shall procure to be printed as required by the General Eules of Practice the record upon which the appeal is to be heard and cause the same to be filed with the clerk of the Appellate Division of the Supreme Court in which the appeal is to be heard duly certified by the clerk of the court in which the conviction was had. If the printed copy of the record so certified is not filed within the time hereinbefore specified the district attorney may move to dismiss the appeal upon four days’ notice to the adverse party and such appeal shall be dismissed unless the Appellate Division of the Supreme Court shall for good cause shown by order extend the time for filing the printed papers so certified as aforesaid.” (See Laws of 1911, chap. 661.) To justify this court in extending the time to file the printed papers it is essential that good cause be shown, viz., facts presented to execuse the default. It is essential for the proper administration of the criminal law that these appeals should be promptly disposed of, and unless the papers in opposition to a motion to dismiss the appeal present some fact which excuses the default, this court is not justified in extending the time within which the provision of the Code of Criminal Procedure is to be complied with.

Upon this application there is no cause shown, and the motion must, therefore, be denied.

Present—Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.

Motion denied. Order to be settled on notice.  