N.Y. CPL Law § 460.30 — New York Code / Act CPL / Part 2 / Title M / Article 460 / Section 460.30
Extension of time for taking appeal
Status: in_force

§ 460.30  Extension of time for taking appeal.\n  1.  Upon motion to an intermediate appellate court of a defendant who\ndesires to take an appeal to such court from a judgment, sentence or\norder of a criminal court but has failed to file a notice of appeal, an\napplication for leave to appeal, or, as the case may be, an affidavit of\nerrors, with such criminal court within the prescribed period, or upon\nmotion to the court of appeals of a defendant who desires to take an\nappeal to such court from an order of a superior court or of an\nintermediate appellate court, but has failed to make an application for\na certificate granting leave to appeal to the court of appeals, or has\nfailed to file a notice of appeal with the intermediate appellate court,\nwithin the prescribed period, such intermediate appellate court or the\ncourt of appeals, as the case may be, may order that the time for the\ntaking of such appeal or applying for leave to appeal be extended to a\ndate not more than thirty days subsequent to the determination of such\nmotion, upon the ground that the failure to so file or make application\nin timely fashion resulted from (a) improper conduct of a public servant\nor improper conduct, death or disability of the defendant's attorney, or\n(b) inability of the defendant and his attorney to have communicated, in\nperson or by mail, concerning whether an appeal should be taken, prior\nto the expiration of the time within which to take an appeal due to\ndefendant's incarceration in an institution and through no lack of due\ndiligence or fault of the attorney or defendant.  Such motion must be\nmade with due diligence after the time for the taking of such appeal has\nexpired, and in any case not more than one year thereafter.\n  2.  The motion must be in writing and upon reasonable notice to the\npeople and with opportunity to be heard.  The motion papers must contain\nsworn allegations of facts claimed to establish the improper conduct,\ninability to communicate, or other facts essential to support the\nmotion, and the people may file papers in opposition thereto.  After all\npapers have been filed, the court must consider the same for the purpose\nof ascertaining whether the motion is determinable without a hearing to\nresolve issues of fact.\n  3.  If the motion papers allege facts constituting a legal basis for\nthe motion, and if the essential allegations are either conclusively\nsubstantiated by unquestionable documentary proof or are conceded by the\npeople to be true, the court must grant the motion.\n  4.  If the motion papers do not allege facts constituting a legal\nbasis for the motion, or if an essential allegation is conclusively\nrefuted by unquestionable documentary proof, the court may deny the\nmotion.\n  5.  If the court does not determine the motion pursuant to subdivision\nthree or four, it must order the criminal court which entered or imposed\nthe judgment, sentence or order sought to be appealed to conduct a\nhearing and to make and report findings of fact essential to the\ndetermination of such motion.  Upon receipt of such report, the\nintermediate appellate court or the court of appeals, as the case may\nbe, must determine the motion.\n  6.  An order of an intermediate appellate court granting or denying a\nmotion made pursuant to this section is appealable to the court of\nappeals if (a) such order states that the determination was made upon\nthe law alone, and (b) a judge of the court of appeals, pursuant to\nprocedure provided in section 460.20, of this chapter, issues a\ncertificate granting leave to the appellant to appeal to the court of\nappeals.\n