N.Y. Criminal Procedure Law § 460.10: Appeal; how taken

§ 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 sixty days after the appellant receives a

transcript of the electronically recorded proceedings, 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.