People v. Cepriano

The time to appeal did not run after the trial court had set aside the verdict of conviction. The affidavits on that motion presented questions to be passed on by the court, and its judicial action thereon, setting aside the verdict, remained conclusive until such order should be vacated. Hence the time to appeal did not run while there was no judgment of conviction to appeal from, and this continued until the court vacated its previous order, which in effect reinstated the original judgment. Accordingly, the motion to dismiss the appeal Is denied. The order of January 12, 1915, is modified by striking out therefrom, at folio 255, the words “as null and void,” and as modified is affirmed. But a review of the trial record leads to its affirmance. The alleged prejudicial atmosphere created by the prosecution was due to receiving proof of conversations had with the defendant or in his presence, which, though accusatory in form, were nevertheless admissible. Judgment of conviction of the County Court of Kings county affirmed. Jenks, P. J., Thomas, Mills Rich and Putnam, JJ., concurred.