N.Y. Criminal Procedure Law § 460.50: Stay of judgment pending appeal to intermediate appellate court

§ 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.