State v. Malone ( 2023 )

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STATE OF CONNECTICUT v. ERICK MALONE
(SC 210159)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Alexander, Js.
The motion of the defendant, Erick Malone, filed
November 10, 2021, for permission to file a late appeal,
having been presented to the court, it is hereby ordered
denied.
May 10, 2023
McDONALD, MULLINS and ALEXANDER, Js. The
defendant, Erick Malone, filed a motion for permission
to file a late appeal on November 10, 2021. The state
opposed the motion on November 19, 2021. This court
permitted the parties to provide further argument on
the issue in their appellate briefs in the defendant’s
separate, earlier appeal filed on April 27, 2021, which
was transferred to this court on December 13, 2021,
which we also decide today. See State v. Malone, 346
Conn. 552, A.3d (2023)
The court, having considered the motion for permis-
sion to file a late appeal, concludes that the defendant
has failed to establish good cause for his late appeal.
See Practice Book 60-2 (5). Accordingly, the court
denies the defendant’s motion for permission to file a
late appeal.
The motion was considered and decided by a panel
of six justices, who divided equally on the motion. The
court has no rule for adding justices or judges to a
panel for purposes of ruling on a pending motion. The
motion therefore fails. See, e.g., State v. Webb, 238 Conn.
389, 563 n.20, 680 A.2d 147 (1996) (Berdon, J., dis-
senting) (defendant’s motion in State v. Cobb, 234 Conn.
735, 663 A.2d 948 (1995), was denied when three of six
sitting justices did not vote in favor of granting it).