
    The People of the State of New York, Plaintiff, v. Philip Politi, Defendant.
    Supreme Court, Westchester County,
    November 8, 1971.
    
      Wekstein, Friedman & Fulfree for defendant. Carl A. Vergari, District Attorney, for plaintiff.
   Leonard Rubenfeld, J.

This is an application for a stay of judgment of the County Court of Westchester County pending an appeal to the Appellate Division of the Supreme Court.

A prior application for a stay was made to Hon. George D. Burchell, County Judge, who presided at the trial of said case and Judge Burchell granted a stay of execution of sentence pending an application for a stay pending appeal.

CPL 460.50 provides the method of staying judgment and authorizes a County Judge, among others, to stay or suspend the execution of judgment pending the determination of the appeal and either releasing the defendant on his own recognizance, or fixing bail, pursuant to the provisions of article 530. The stay or suspension of execution of judgment does not become effective unless and until the defendant is released, either on his own recognizance or upon the posting of bail. Only one such application may be made pursuant to this section (CPL 460.50, subd. 3) and this appears to be the section under which Judge Burchell stayed execution of said sentence and admitted said defendant to bail.

It appears, therefore, that the proper procedure would be for Judge Burchell to review his determination pursuant to CPL 530.60 and fix bail pending appeal in this matter in accordance with CPL 460.50 and CPL 510.30 if he determines that the defendant should be continued on bail during such appeal. Since no record has been submitted to this court it also appears that the Judge who tried the case is in the best position to determine whether £ £ the appeal is palpably without merit ’ ’ on the question of bail (CPL 510.30, subd. 2, par. [b]).

Accordingly, the matter is referred to Hon. George D. Burchell for such determination.  