People v. White

Motion by the District Attorney to reverse summarily the trial court order of March 15, 1976, which, on defendant’s motion, reduced the conviction for robbery in the first degree to robbery in the second degree (see 86 Misc 2d 803), and to reinstate the original conviction (see People v Rodriguez, 52 AD2d 781; People v Cwikla, 54 AD2d 80), denied without prejudice. This is an appeal by the People from an intermediate order. Such an appeal does not, as a general rule, survive the entry of the final judgment. (See Jema Props. v Mc Leod, 51 AD2d 702.) The defendant has appealed from the final judgment, and the time to perfect has heretofore *537been enlarged to the May Term, but remains presently unperfected. Therefore, the court sua sponte invokes the provisions of CPL 460.10 (subd [6]) to treat the notice of appeal from the order as a valid appeal by the People from the judgment, bringing up for review the intermediate order, and to consolidate the People’s appeal with the appeal by the defendant, to be heard together. (See People v Popolo, 31 AD2d 761.) In view of the time factor, both appeals shall be perfected for the September Term. Concur— Kupferman, J. P., Birns, Silverman and Markewich, JJ.