New York Consolidated Law
Criminal Procedure Law
Article 460 - NY Criminal Procedure Law
APPEALS--TAKING AND PERFECTION THEREOF AND STAYS DURING PENDENCY THEREOF
Section |
Description |
460.10 | Appeal; how taken. |
460.15 | Certificate granting leave to appeal to intermediate appellate court. |
460.20 | Certificate granting leave to appeal to court of appeals. |
460.30 | Extension of time for taking appeal. |
460.40 | Effect of taking of appeal upon judgment or order of courts below; when stayed. |
460.50 | Stay of judgment pending appeal to intermediate appellate court. |
460.60 | Stay of judgment pending appeal to court of appeals from intermediate appellate court. |
460.70 | Appeal; how perfected. |
460.80 | Appeal; argument and submission thereof. |
460.90 | Filing of papers on appeal to the appellate division by electronic means. |
S 460.10 Appeal; how taken.
1. Except as provided in subdivisions two and three, an appeal taken
as of right to an intermediate appellate court or directly to the court
of appeals from a judgment, sentence or order of a criminal court is
taken as follows:
(a) A party seeking to appeal from a judgment or a sentence or an
order and sentence included within such judgment, or from a resentence,
or from an order of a criminal court not included in a judgment, must,
within thirty days after imposition of the sentence or, as the case may
be, within thirty days after service upon such party of a copy of an
order not included in a judgment, file with the clerk of the criminal
court in which such sentence was imposed or in which such order was
entered a written notice of appeal, in duplicate, stating that such
party appeals therefrom to a designated appellate court.
(b) If the defendant is the appellant, he must, within such thirty
day period, serve a copy of such notice of appeal upon the district
attorney of the county embracing the criminal court in which the
judgment or order being appealed was entered. If the appeal is directly
to the court of appeals, the district attorney, following such service
upon him, must immediately give written notice thereof to the public
servant having custody of the defendant.
(c) If the people are the appellant, they must, within such thirty
day period, serve a copy of such notice of appeal upon the defendant or
upon the attorney who last appeared for him in the court in which the
order being appealed was entered.
(d) Upon filing and service of the notice of appeal as prescribed in
paragraphs (a), (b) and (c), the appeal is deemed to have been taken.
(e) Following the filing with him of the notice of appeal in
duplicate, the clerk of the court in which the judgment, sentence or
order being appealed was entered or imposed, must endorse upon such
instruments the filing date and must transmit the duplicate notice of
appeal to the clerk of the court to which the appeal is being taken.
2. An appeal taken as of right to a county court or to an appellate
term of the supreme court from a judgment, sentence or order of a local
criminal court in a case in which the underlying proceedings were
recorded by a court stenographer is taken in the manner provided in
subdivision one; except that where no clerk is employed by such local
criminal court the appellant must file the notice of appeal with the
judge of such court, and must further file a copy thereof with the clerk
of the appellate court to which the appeal is being taken.
3. An appeal taken as of right to a county court or to an appellate
term of the supreme court from a judgment, sentence or order of a local
criminal court in a case in which the underlying proceedings were not
recorded by a court stenographer is taken as follows:
(a) Within thirty days after entry or imposition in such local
criminal court of the judgment, sentence or order being appealed, the
appellant must file with such court either (i) an affidavit of errors,
setting forth alleged errors or defects in the proceedings which are the
subjects of the appeal, or (ii) a notice of appeal. Where a notice of
appeal is filed, the appellant must serve a copy thereof upon the
respondent in the manner provided in paragraphs (b) and (c) of
subdivision one, and, within thirty days after the filing thereof, must
file with such court an affidavit of errors.
(b) Not more than three days after the filing of the affidavit of
errors, the appellant must serve a copy thereof upon the respondent or
the respondent's counsel or authorized representative. If the defendant
is the appellant, such service must be upon the district attorney of the
county in which the local criminal court is located. If the people are
the appellant, such service must be upon the defendant or upon the
attorney who appeared for him in the proceedings in the local criminal
court.
(c) Upon filing and service of the affidavit of errors as prescribed
in paragraphs (a) and (b), the appeal is deemed to have been taken.
(d) Within ten days after the appellant's filing of the affidavit of
errors with the local criminal court, such court must file with the
clerk of the appellate court to which the appeal has been taken both the
affidavit of errors and the court's return, and must deliver a copy of
such return to each party or a representative thereof as indicated in
paragraph (b). The court's return must set forth or summarize evidence,
facts or occurrences in or adduced at the proceedings resulting in the
judgment, sentence or order, which constitute the factual foundation for
the contentions alleged in the affidavit of errors.
(e) If the local criminal court does not file such return within the
prescribed period, or if it files a defective return, the appellate
court, upon application of the appellant, must order such local criminal
court to file a return or an amended return, as the case may be, within
a designated time which such appellate court deems reasonable.
4. An appeal by a defendant to an intermediate appellate court by
permission, pursuant to section 450.15, is taken as follows:
(a) Within thirty days after service upon the defendant of a copy of
the order sought to be appealed, the defendant must make application,
pursuant to section 460.15, for a certificate granting leave to appeal
to the intermediate appellate court.
(b) If such application is granted and such certificate is issued,
the defendant, within fifteen days after issuance thereof, must file
with the criminal court in which the order sought to be appealed was
rendered the certificate granting leave to appeal together with a
written notice of appeal, or if the appeal is from a local criminal
court in a case in which the underlying proceedings were not recorded by
a court stenographer, either (i) an affidavit of errors, or (ii) a
notice of appeal. In all other respects the appeal shall be taken as
provided in subdivisions one, two and three.
5. An appeal to the court of appeals from an order of an intermediate
appellate court is taken as follows:
(a) Within thirty days after service upon the appellant of a copy of
the order sought to be appealed, the appellant must make application,
pursuant to section 460.20, for a certificate granting leave to appeal
to the court of appeals. The appellate division of each judicial
department shall adopt rules governing the procedures for service of a
copy of such order.
(b) If such application is granted, the issuance of the certificate
granting leave to appeal shall constitute the taking of the appeal.
6. Where a notice of appeal, an affidavit of errors, an application
for leave to appeal to an intermediate appellate court, or an
application for leave to appeal to the court of appeals is premature or
contains an inaccurate description of the judgment, sentence or order
being or sought to be appealed, the appellate court, in its discretion,
may, in the interest of justice, treat such instrument as valid. Where
an appellant files a notice of appeal within the prescribed period but,
through mistake, inadvertence or excusable neglect, omits to serve a
copy thereof upon the respondent within the prescribed period, the
appellate court to which the appeal is sought to be taken may, in its
discretion and for good cause shown, permit such service to be made
within a designated period of time, and upon such service the appeal is
deemed to be taken.
S 460.15. Certificate granting leave to appeal to intermediate
appellate court.
1. A certificate granting leave to appeal to an intermediate
appellate court is an order of one judge or justice of the intermediate
appellate court to which the appeal is sought to be taken granting such
permission and certifying that the case involves questions of law or
fact which ought to be reviewed by the intermediate appellate court.
2. An application for such a certificate must be made in a manner
determined by the rules of the appellate division of the department in
which such intermediate appellate court is located. Not more than one
application may be made for such a certificate.
S 460.20 Certificate granting leave to appeal to court of appeals.
1. A certificate granting leave to appeal to the court of appeals
from an order of an intermediate appellate court is an order of a judge
granting such permission and certifying that the case involves a
question of law which ought to be reviewed by the court of appeals.
2. Such certificate may be issued by the following judges in the
indicated situations:
(a) Where the appeal sought is from an order of the appellate
division, the certificate may be issued by (i) a judge of the court of
appeals or (ii) a justice of the appellate division of the department
which entered the order sought to be appealed.
(b) Where the appeal sought is from an order of an intermediate
appellate court other than the appellate division, the certificate may
be issued only by a judge of the court of appeals.
3. An application for such a certificate must be made in the
following manner:
(a) An application to a justice of the appellate division must be
made upon reasonable notice to the respondent;
(b) An application seeking such a certificate from a judge of the
court of appeals must be made to the chief judge of such court by
submission thereof, either in writing or first orally and then in
writing, to the clerk of the court of appeals. The chief judge must
then designate a judge of such court to determine the application. The
clerk must then notify the respondent of the application and must inform
both parties of such designation.
4. A justice of the appellate division to whom such an application
has been made, or a judge of the court of appeals designated to
determine such an application, may in his discretion determine it upon
such papers as he may request the parties to submit, or upon oral
argument, or upon both.
5. Every judge or justice acting pursuant to this section shall file
with the clerk of the court of appeals, immediately upon issuance, a
copy of every certificate granting or denying leave to appeal.
S 460.30 Extension of time for taking appeal.
1. Upon motion to an intermediate appellate court of a defendant who
desires to take an appeal to such court from a judgment, sentence or
order of a criminal court but has failed to file a notice of appeal, an
application for leave to appeal, or, as the case may be, an affidavit of
errors, with such criminal court within the prescribed period, or upon
motion to the court of appeals of a defendant who desires to take an
appeal to such court from an order of a superior court or of an
intermediate appellate court, but has failed to make an application for
a certificate granting leave to appeal to the court of appeals, or has
failed to file a notice of appeal with the intermediate appellate court,
within the prescribed period, such intermediate appellate court or the
court of appeals, as the case may be, may order that the time for the
taking of such appeal or applying for leave to appeal be extended to a
date not more than thirty days subsequent to the determination of such
motion, upon the ground that the failure to so file or make application
in timely fashion resulted from (a) improper conduct of a public servant
or improper conduct, death or disability of the defendant's attorney, or
(b) inability of the defendant and his attorney to have communicated, in
person or by mail, concerning whether an appeal should be taken, prior
to the expiration of the time within which to take an appeal due to
defendant's incarceration in an institution and through no lack of due
diligence or fault of the attorney or defendant. Such motion must be
made with due diligence after the time for the taking of such appeal has
expired, and in any case not more than one year thereafter.
2. The motion must be in writing and upon reasonable notice to the
people and with opportunity to be heard. The motion papers must contain
sworn allegations of facts claimed to establish the improper conduct,
inability to communicate, or other facts essential to support the
motion, and the people may file papers in opposition thereto. After all
papers have been filed, the court must consider the same for the purpose
of ascertaining whether the motion is determinable without a hearing to
resolve issues of fact.
3. If the motion papers allege facts constituting a legal basis for
the motion, and if the essential allegations are either conclusively
substantiated by unquestionable documentary proof or are conceded by the
people to be true, the court must grant the motion.
4. If the motion papers do not allege facts constituting a legal
basis for the motion, or if an essential allegation is conclusively
refuted by unquestionable documentary proof, the court may deny the
motion.
5. If the court does not determine the motion pursuant to subdivision
three or four, it must order the criminal court which entered or imposed
the judgment, sentence or order sought to be appealed to conduct a
hearing and to make and report findings of fact essential to the
determination of such motion. Upon receipt of such report, the
intermediate appellate court or the court of appeals, as the case may
be, must determine the motion.
6. An order of an intermediate appellate court granting or denying a
motion made pursuant to this section is appealable to the court of
appeals if (a) such order states that the determination was made upon
the law alone, and (b) a judge of the court of appeals, pursuant to
procedure provided in section 460.20, of this chapter, issues a
certificate granting leave to the appellant to appeal to the court of
appeals.
S 460.40 Effect of taking of appeal upon judgment or order of courts
below; when stayed.
1. The taking of an appeal by the defendant directly to the court of
appeals, pursuant to subdivision one of section 450.70, from a superior
court judgment including a sentence of death stays the execution of such
sentence. Except as provided in subdivision two of this section, in no
other case does the taking of an appeal, by either party, in and of
itself stay the execution of any judgment, sentence or order of either a
criminal court or an intermediate appellate court.
2. The taking of an appeal by the people to an intermediate appellate
court pursuant to subdivision one-a of section 450.20, from an order
reducing a count or counts of an indictment or dismissing an indictment
and directing the filing of a prosecutor`s information, stays the effect
of such order. In addition, the taking of an appeal by the people to an
intermediate appellate court pursuant to subdivision one of section
450.20, from an order dismissing a count or counts of an indictment
charging murder in the first degree, stays the effect of such order.
3. Within six months of the effective date of this subdivision, the
court of appeals shall adopt rules to ensure that a defendant is granted
a stay of the execution of any death warrant issued pursuant to article
twenty-two-B of the correction law to allow the defendant an opportunity
to prepare and timely file an initial motion pursuant to section 440.10
or 440.20 seeking to set aside a sentence of death or vacate a judgment
including a sentence of death and to allow the motion and any appeal
from the denial thereof to be timely determined. The rules shall provide
that in the event a defendant seeks to file any subsequent motion with
respect to the judgment or sentence following a final determination of
the defendant`s initial motion pursuant to section 440.10 or 440.20, a
motion for a stay of the execution of the death warrant may only be
granted for good cause shown. The people and the defendant shall have a
right to appeal to the court of appeals from orders granting or denying
such stay motions and any rules adopted pursuant to this subdivision
shall provide that the court of appeals may affirm such orders, reverse
them or modify them upon such terms as the court deems appropriate and
shall provide for the expeditious perfection and determination of such
appeals. Prior to adoption of the rules, the court of appeals shall
issue proposed rules and receive written comments thereon from
interested parties.
S 460.50 Stay of judgment pending appeal to intermediate appellate court.
1. Upon application of a defendant who has taken an appeal to an
intermediate appellate court from a judgment or from a sentence of a
criminal court, a judge designated in subdivision two may issue an order
both (a) staying or suspending the execution of the judgment pending the
determination of the appeal, and (b) either releasing the defendant on
his own recognizance or fixing bail pursuant to the provisions of
article five hundred thirty. That phase of the order staying or
suspending execution of the judgment does not become effective unless
and until the defendant is released, either on his own recognizance or
upon the posting of bail.
2. An order as prescribed in subdivision one may be issued by the
following judges in the indicated situations:
(a) If the appeal is to the appellate division from a judgment or a
sentence of either the supreme court or the New York City criminal
court, such order may be issued by (i) a justice of the appellate
division of the department in which the judgment was entered, or (ii) a
justice of the supreme court of the judicial district embracing the
county in which the judgment was entered;
(b) If the appeal is to the appellate division from a judgment or a
sentence of a county court, such order may be issued by (i) a justice of
such appellate division, or (ii) a justice of the supreme court of the
judicial district embracing the county in which the judgment was
entered, or (iii) a judge of such county court;
(c) If the appeal is to an appellate term of the supreme court from a
judgment or sentence of the New York City criminal court, such order may
be issued by a justice of the supreme court of the judicial district
embracing the county in which the judgment was entered;
(d) With respect to appeals to county courts from judgments or
sentences of local criminal courts, and with respect to appeals to
appellate terms of the supreme court from judgments or sentences of any
criminal courts located outside of New York City, the judges who may
issue such orders in any particular situation are determined by rules of
the appellate division of the department embracing the appellate court
to which the appeal has been taken.
3. An application for an order specified in this section must be made
upon reasonable notice to the people, and the people must be accorded
adequate opportunity to appear in opposition thereto. Not more than one
application may be made pursuant to this section.
4. Notwithstanding the provisions of subdivision one, if within one
hundred twenty days after the issuance of such an order the appeal has
not been brought to argument in or submitted to the intermediate
appellate court, the operation of such order terminates and the
defendant must surrender himself to the criminal court in which the
judgment was entered in order that execution of the judgment be
commenced or resumed; except that this subdivision does not apply where
the intermediate appellate court has (a) extended the time for argument
or submission of the appeal to a date beyond the specified period of one
hundred twenty days, and (b) upon application of the defendant,
expressly ordered that the operation of the order continue until the
date of the determination of the appeal or some other designated future
date or occurrence.
5. Where the defendant is at liberty during the pendency of an appeal
as a result of an order issued pursuant to this section, the
intermediate appellate court, upon affirmance of the judgment, must by
appropriate certificate remit the case to the criminal court in which
such judgment was entered. The criminal court must, upon at least two
days notice to the defendant, his surety and his attorney, promptly
direct the defendant to surrender himself to the criminal court in order
that execution of the judgment be commenced or resumed, and if necessary
the criminal court may issue a bench warrant to secure his appearance.
6. Upon application of a defendant who has been granted a certificate
granting leave to appeal pursuant to section 460.15 of this chapter, and
in accordance with the procedures set forth in subdivisions three, four
and five of this section, the intermediate appellate court may issue an
order both (a) staying or suspending the execution of the judgment
pending the determination of the appeal, and (b) either releasing the
defendant on his own recognizance or fixing bail pursuant to the
provisions of article five hundred thirty. That phase of the order
staying or suspending execution of the judgment does not become
effective unless and until the defendant is released, either on his own
recognizance or upon the posting of bail.
S 460.60 Stay of judgment pending appeal to court of appeals from
intermediate appellate court.
1. (a) A judge who, pursuant to section 460.20 of this chapter, has
received an application for a certificate granting a defendant leave to
appeal to the court of appeals from an order of an intermediate
appellate court affirming or modifying a judgment including a sentence
of imprisonment, a sentence of imprisonment, or an order appealed
pursuant to section 450.15 of this chapter, of a criminal court, may,
upon application of such defendant-appellant issue an order both (i)
staying or suspending the execution of the judgment pending the
determination of the application for leave to appeal, and, if that
application is granted, staying or suspending the execution of the
judgment pending the determination of the appeal, and (ii) either
releasing the defendant on his own recognizance or continuing bail as
previously determined or fixing bail pursuant to the provisions of
article five hundred thirty. Such an order is effective immediately
and that phase of the order staying or suspending execution of the
judgment does not become effective unless and until the defendant is
released, either on his own recognizance or upon the posting of bail.
(b) If the application for leave to appeal is denied, the stay or
suspension pending the application automatically terminates upon the
signing of the certificate denying leave. Upon such termination, the
certificate denying leave must be sent to the criminal court in which
the original judgment was entered, and the latter must proceed in the
manner provided in subdivision five of section 460.50 of this chapter.
2. An application pursuant to subdivision one must be made upon
reasonable notice to the people, and the people must be accorded
adequate opportunity to appear in opposition thereto. Such an
application may be made immediately after the entry of the order sought
to be appealed or at any subsequent time during the pendency of the
appeal. Not more than one application may be made pursuant to this
section.
3. Notwithstanding the provisions of subdivision one, if within one
hundred twenty days after the issuance of a certificate granting leave
to appeal, the appeal or prospective appeal has not been brought to
argument in or submitted to the court of appeals, the operation of an
order issued pursuant to subdivision one of this section terminates and
the defendant must surrender himself to the criminal court in which the
original judgment was entered in order that execution of such judgment
be commenced or resumed; except that this subdivision does not apply
where the court of appeals has (a) extended the time for argument or
submission of the appeal to a date beyond the specified period of one
hundred twenty days and (b) upon application of the defendant expressly
ordered that the operation of such order continue until the date of the
determination of the appeal or some other designated future date or
occurrence.
4. Where the defendant is at liberty during the pendency of an appeal
as a result of an order issued pursuant to this section, the court of
appeals upon affirmance of the judgment or order, must, by appropriate
certificate, remit the case to the criminal court in which the judgment
was entered, and the latter must proceed in the manner provided in
subdivision five of section 460.50 of this chapter.
S 460.70 Appeal; how perfected.
1. Except as provided in subdivision two, the mode of and time for
perfecting an appeal which has been taken to an intermediate appellate
court from a judgement, sentence or order of a criminal court are
determined by rules of the appellate division of the department in which
such appellate court is located. Among the matters to be determined by
such court rules are the times when the appeal must be noticed for and
brought to argument, the content and form of the records and briefs to
be served and filed, and the time when such records and briefs must be
served and filed.
When an appeal is taken by a defendant pursuant to section 450.10, a
transcript shall be prepared and settled and shall be filed with the
criminal court by the court reporter. The expense for such transcript
and any reproduced copies of such transcript shall be paid by the
defendant. Where the defendant is granted permission to proceed as a
poor person by the appellate court, the court reporter shall promptly
make and file with the criminal court a transcript of the stenographic
minutes of such proceedings as the appellate court shall direct. The
expense of transcripts and any reproduced copies of transcripts prepared
for poor persons under this section shall be a state charge payable out
of funds appropriated to the office of court administration for that
purpose. The appellate court shall where such is necessary for
perfection of the appeal, order that the criminal court furnish a
reproduced copy of such transcript to the defendant or his counsel.
2. An appeal which has been taken to a county court or to an appellate
term of the supreme court from a judgment, sentence or order of a local
criminal court pursuant to subdivision three of section 460.10 is
perfected as follows:
(a) After the local criminal court has, pursuant to paragraph (d) of
subdivision three of section 460.10, filed its return with the clerk of
the appellate court and delivered a copy thereof to the appellant, the
appellant must file with such clerk, and serve a copy thereof upon the
respondent, a notice of argument, noticing the appeal for argument at
the term of such appellate court immediately following the term being
held at the time of the appellant's receipt of the return. Upon motion
of the appellant, however, such appellate court may for good cause shown
enlarge the time to a subsequent term, in which case the appellant must
notice the appeal for argument at such subsequent term;
(b) The appellant must further comply with all court rules applicable
to the mode of perfecting such appeals;
(c) If the appellant does not file a notice of argument as provided in
paragraph (a) or does not comply with all applicable court rules as
provided in paragraph (b), the appellate court may, either upon motion
of the respondent or upon its own motion, dismiss the appeal.
3. The mode of and time for perfecting any appeal which has been taken
to the court of appeals are determined by the rules of the court of
appeals. Among the matters to be determined by such court rules are the
times when the appeal must be noticed for and brought to argument, the
content, form and number of the records and briefs and copies thereof to
be served and filed, and the times when such records and briefs must be
served and filed.
When an appeal is taken by a defendant pursuant to section 450.70, the
defendant shall cause to be prepared and printed or otherwise duplicated
pursuant to rules of the court of appeals the record on appeal and the
required number of copies thereof. If the defendant is granted
permission to appeal as a poor person, the expense thereof shall be a
state charge payable out of funds appropriated to the office of court
administration for that purpose.
S 460.80 Appeal; argument and submission thereof.
The mode of and procedure for arguing or otherwise litigating appeals
in criminal cases are determined by rules of the individual appellate
courts. Among the matters to be determined by such court rules are the
circumstances in which oral argument is required and those in which the
case may be submitted by either or both parties without oral argument;
the consequences or effect of failure to present oral argument when such
is required; the amount of time for oral argument allowed to each party;
and the number of counsel entitled to be heard.
* S 460.90 Filing of papers on appeal to the appellate division by
electronic means.
Notwithstanding any other provision of law, the appellate division in
each judicial department may promulgate rules authorizing a program in
the use of electronic means for the taking and perfection of appeals in
accordance with the provisions of section twenty-one hundred twelve of
the civil practice law and rules. Provided however, such rules shall not
require an unrepresented party or any attorney who furnishes a
certification specified in subparagraph (i) or (ii) of paragraph (c) of
subdivision two of section 10.40 of this chapter to take or perfect an
appeal by electronic means. Provided further, however, before
promulgating any such rules, the appellate division in each judicial
department shall consult with the chief administrator of the courts and
shall provide an opportunity for review and comment by all those who are
or would be affected including district attorneys; representatives of
the office of indigent legal services; not-for-profit legal service
providers; public defenders; statewide and local specialty bar
associations whose membership devotes a significant portion of their
practice to assigned criminal cases pursuant to subparagraph (i) of
paragraph (a) of subdivision three of section seven hundred twenty-two
of the county law; institutional providers of criminal defense services
and other members of the criminal defense bar; representatives of
victims' rights organizations; unaffiliated attorneys who regularly
appear in proceedings that are or would be affected by such electronic
filing program; interested members of the criminal justice community;
and any other persons in whose county a program has been implemented in
any of the courts therein as deemed to be appropriate by any appellate
division. To the extent practicable, rules promulgated by the appellate
division in each judicial department pursuant to this section shall be
uniform. For purposes of this section, "electronic means" shall be as
defined in subdivision (f) of rule twenty-one hundred three of such law
and rules.
* NB Repealed September 1, 2019
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