2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title M - Proceedings After Judgment › Article 460 - Appeals--Taking and Perfection Thereof and Stays During Pendency Thereof › 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.