Current through Register Vol. 46, No. 39, September 25, 2024
(a) Record and briefs.
(1) In appeals in criminal
cases, other than those in which permission to proceed on the original record
is granted, the appellant may elect to proceed by any of the methods specified
in section
600.5 of this Part, and the
content and form of the record on appeal or appendix shall be as prescribed by
section 600.10 of this Part.
(2) The content and form of
briefs shall be as prescribed in section
600.10 of this Part and in
addition thereto, there shall be included at the beginning of the main brief
submitted by appellant a statement setting forth the decision and judgment
appealed from; the sentence imposed, if any, and whether an application for an
order of stay of judgment pending determination of the appeal was made and, if
so, the date of such application, the court to which it was made, and the
decision and opinion of the court.
(b) When to be heard. Appeals in
criminal cases shall be placed on the calendar in the manner described in
section 600.11(b)-(f) of
this Part, but must be brought on for argument within 120 days after the last
day in which a notice of appeal was required to be filed, unless the time to
perfect the appeal is enlarged by the court or a justice thereof.
(c) Enlargements of time.
Every application for an enlargement of time within which to perfect an appeal
for argument or submission, or for an extension of time to serve and file the
record and brief shall be accompanied by an affidavit satisfactorily explaining
the delay and stating whether there is an order of stay of judgment pending
determination of the appeal outstanding and, if so, the date such order was
granted and whether the appellant is free on bail or his own
recognizance.
(d)
Application for certificate granting leave to appeal.
(1) Application for a certificate
granting leave to appeal to this court shall be made, in writing, within 30
days after service of the order upon the applicant, shall give 15 days' notice
to the district attorney, shall be filed with proof of service and shall be
submitted without oral argument.
(2) The moving papers for a certificate
granting leave to appeal shall be addressed to the court for assignment to a
justice, and shall state:
(i)
the return day;
(ii)
the name and address of the party seeking leave to appeal and the name of the
district attorney;
(iii) the indictment number;
(iv) the questions of law or
fact which ought to be reviewed; and
(v) that no prior application for such
certificate has been made.
(3) The moving papers must include:
(i) a copy of the order sought
to be reviewed; and
(ii) a copy of the memorandum or
opinion of the court below or a statement that there was none.
(4) Answering
papers or a statement that there is no opposition to the application shall be
served and filed not later than noon of the third day before the return date
stated in the application. Answering papers shall discuss the merits of the
application, or shall state:
(i) that the file has been reviewed and
includes a response by the district attorney covering the matters raised in the
paper submitted by the applicant in the court below and an opinion or
memorandum of the justice of that court; and
(ii) that the application for a
certificate granting leave to appeal does not contain any new
allegations.
(e) Expedited appeal of an order
reducing an indictment or dismissing an indictment and directing the filing of
a prosecutor's information.
(1)
This subdivision shall govern the procedure for an expedited appeal to the
Appellate Division, pursuant to C PL 210.20(6)(c), 450.20(1-a) and 450.55, of
an order by a superior court reducing a count or counts of an indictment or
dismissing an indictment and directing the filing of a prosecutor's
information.
(2)
After the people file and serve a notice of appeal pursuant to C PL 460.10(1),
either party may request that the court expedite the appeal. If a request is
made, the court shall hear the appeal on an expedited basis as set forth in
this subdivision.
(3)
(i) The Appellate Division shall
establish an expedited briefing schedule for the appeal. Briefs may be
typewritten or reproduced. The people shall file nine copies of a brief and an
appendix, which shall include a copy of the indictment and the trial court's
decision and order. The respondent shall file nine copies of a brief and, if
necessary, an appendix. One copy of the brief and appendix shall be served on
opposing counsel.
(ii) The appeal may be taken on one
original record, which shall include copies of the indictment, the motion
papers, the trial court's decision and order, and the notice of
appeal.
(iii) The
people shall file with the Appellate Division, separately from the record, one
copy of the grand jury minutes.
(iv) The court shall give preference to
the hearing of an appeal perfected pursuant to this subdivision and shall
determine the appeal as expeditiously as possible.
(f) Appeals taken
by the people. An appeal taken by the people must be perfected by serving a
copy of the appellant's brief upon respondent's appellate attorney, or in the
event that no appellate has appeared for respondent, upon the attorney who last
appeared for him in the trial court, within nine months of the filing of the
notice of appeal.
(g) Assignment of appellate counsel. An
attorney who represents a defendant in the superior court and is a member of
the assigned counsel plan appellate panel, with defendant's written consent,
may apply to the Appellate Division for appointment as appellate
counsel.
(h) Appeals
to the Court of Appeals. Service of a copy of an order on an appellant as
required by C PL 460.10(5)(a) shall be made pursuant to CPLR 2103.
