State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 107438 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK, 

Respondent,

v MEMORANDUM AND ORDER

HENRI G. LAMONT,

Appellant.

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Calendar Date: October 11, 2016

Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

__________

Henri G. Lamont, Moravia, appellant pro se.

Joel E. Abelove, District Attorney, Troy (Vincent J.

O'Neill of counsel), for respondent.

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Lynch, J.

Appeal from an order of the County Court of Rensselaer

County (Ceresia, J.), entered October 16, 2014, which denied

defendant's motion to, among other things, vacate a prior

decision of said court denying his motion to vacate the judgment

of conviction.

In September 2003, defendant was convicted, following a

jury trial, of criminal possession of a weapon in the third

degree (two counts), criminal possession of marihuana in the

fourth degree and criminal possession of a controlled substance

in the seventh degree (21 AD3d 1129, 1130 [2005], lv denied 6

NY3d 835 [2006]). On appeal, that judgment of conviction was

affirmed by this Court (id. at 1134). In December 2012,

defendant filed a motion, which he denominated a CPLR 5015

motion, to vacate the September 2003 judgment based upon alleged
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newly discovered evidence and in the interest of justice. 

Finding that CPLR 5015 does not apply to a criminal action,

County Court construed defendant's motion as a CPL article 440

motion to vacate the judgment of conviction and denied the motion

in an April 2013 order. In May 2014, defendant filed a another

motion denominated as a CPLR 5015 motion — based upon the same

grounds as his previous December 2012 motion — seeking to vacate

the September 2003 judgment and County Court's April 2013 order

denying his December 2012 motion. In an October 2014 order,

County Court construed defendant's May 2014 motion as a motion to

reargue pursuant to CPLR 2221 (d) (2) and denied the motion. 

Defendant now appeals. 

It is axiomatic that the CPLR governs in civil proceedings

(see CPLR 101, 105 [d]), and the CPL governs in criminal actions

(see CPL 1.10 [1] [a]; People ex rel. Hirschberg v Orange County

Ct., 271 NY 151, 155-156 [1936]). Defendant's May 2014 motion

was made pursuant to CPLR 2221 and 5015, and he has provided no

authority allowing application of those provisions in this

criminal action (see People v Stacchini, 108 AD3d 866, 868 n

[2013]; People v Crisp, 268 AD2d 247, 247 [2000], lv denied 94

NY2d 946 [2000]; People v Holden, 260 AD2d 233, 234 [1999], lv

denied 93 NY2d 1003 [1999]; People v Silva, 122 AD2d 750, 750

[1986]). Furthermore, inasmuch as County Court construed

defendant's December 2012 motion as one made pursuant to CPL

article 440 — the denial of which may only be appealed with

permission of this Court (see CPL 460.15) — the Criminal

Procedure Law does not provide for reargument following denial of

a motion made pursuant to CPL article 440 (see People v

Stacchini, 108 AD3d at 868 n). In any event, to the extent that

defendant sought reargument pursuant to CPLR 2221 in his May 2014

motion, there is also no "right to appeal from the denial of

reargument under CPLR 2221" (id.; see e.g. People ex rel. Adams v

Cunningham, 134 AD3d 1258, 1259 [2015]; Matter of Linney v City

of Plattsburgh, 49 AD3d 1020, 1022 [2008]; Matter of King v Town

Council of Coxsackie, 35 AD3d 1120, 1120-1121 [2006]). 

Accordingly, defendant's claims are not properly before us, and

the appeal must be dismissed. 

Peters, P.J., Devine, Clark and Aarons, JJ., concur.
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ORDERED that the appeal is dismissed. 

ENTER:

Robert D. Mayberger

Clerk of the Court