N.Y. Criminal Procedure Law § 460.30: Extension of time for taking appeal

§ 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.