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Issues In NY Criminal Law--Vol. 4, #2©

Issue: Criminal motion practice in the Fourth Department

Criminal appeals are largely concerned with filing briefs and records and oral argument. In addition to these main tasks, counsel may find it necessary to utilize motion practice. Generally, see Handling a Criminal Case in New York (West Group 2001), §§ 23:43, 23:69.

Types of motions

A number of different types of relief may be sought by the criminal defense attorney in a motion to the Appellate Division. These include:

  1. poor person status (usually requested by the pro se defendant).
  2. for permission to file a reduced number of briefs and records, e.g., where the defendant is indigent but the appellate attorney is retained by the defendant's family.
  3. Anders / Crawford motion, where the attorney concludes that there are no meritorious appellate issues. See Handling § 23:83 - 23:92.
  4. For increased number of pages in a brief.
  5. For permission to argue a sentencing issue.
  6. To consolidate a 440.10 appeal and direct appeal, Handling § 22:32.
  7. Responding to prosecutor's motion to dismiss for failure to timely appeal.
  8. Summary reversal, where transcribing the stenographic minutes below has been unduly delayed, Handling §§ 23:33 - 23:34.
  9. For a stay of judgment.
  10. To extend a stay that was previously granted, see, e.g., People v Jacobs, 286 AD2d 404, 729 NYS2d 189 (2d Dept 2001).
  11. For an expedited appeal, Handling § 23:63.
  12. Motion for reargument.
  13. To allow the defense to have access to grand jury minutes, Handling §§ 6:125, 23:30.
  14. To withdraw a brief, in order to file an amended brief.
  15. To amend the stipulated record on appeal.
  16. For a change of venue, Handling § 7:19.
  17. To file a late notice of appeal, Handling § 23:23.
  18. Bachert brief, where the appellate attorney argues that ineffective assistance of counsel occurred previously on the appeal. People v Bachert, 69 NY2d 593, 516 NYS2d 623 (1987), Handling § 23:100.
  19. For leave to appeal to the Court of Appeals.
  20. With denial of a CPL 440.10 motion, request for leave to appeal, Handling §§ 22:80 - 22:81.
  21. Where the prosecution is appellant, to dismiss for failure to timely perfect the appeal.

Mechanics of motion practice

Appellate motion practice in the Fourth Department is governed largely by 22 NYCRR §1000.13. The motion must be in writing and on notice to opposing counsel. Among the requirements are:

  1. the motion is returnable on a Monday, or the first business day of the week, at 10 AM
  2. no oral argument
  3. service follows the CPLR, 8 days notice, additional time if mailed
  4. motion papers must be filed by 5 PM on the Friday before the return date
  5. file with the court the original motion papers as well as one copy. See Handling, §§ 23:52 - 23:65. Handling § 23:33.

The motion papers should include:

  1. a copy of the notice of appeal and affidavit of service
  2. affidavit of service of the motion
  3. prior orders of the Appellate Division
  4. the appellate docket number to the appeal (e.g., KA - 02 - 01234), if the Appellate Division has assigned one.

A motion may also be brought by order to show cause.

Responding to motions

Responding papers should also include the original and one copy, as well as proof of service on the moving party. When the defense is consenting, e.g., to the prosecution's request for an extension of time to file its brief, a letter consenting to the request should suffice. When opposing a motion, a formal affirmation is appropriate. In responding, the attorney may cross-move for separate relief.

When the DA is seeking only an extension in filing its brief, rather than adjourning the oral argument and ultimate decision, there is usually little reason to oppose the request. If the defendant is in custody and resolution of the appeal would be delayed, the defense may have greater reason to oppose.

Effect of motion decision on appeal

Whatever the appellate court's order on the motion, it is not appealable or reviewable on argument of the appeal itself. People v Jansen, __ AD2d __, 2001 WL 1647331 (4th Dept 2001).

Outside of motion practice

Certain matters relating to appeals do not come before the Appellate Division, or are not part of motion practice. For example, if there is a dispute as to the contents of the appellate record on appeal, a motion to settle the record is brought in the lower court. (If the lower court record is incomplete, a "reconstruction hearing" may be required. People v Mitchell, 189 AD2d 337, 596 NYS2d 612 (4th Dept 1993); Handling § 23:39 - 23:42).

Where defense counsel is assigned and under a time limit to file the brief, the request for an extension to file the brief is made by letter to an individual justice of the Appellate Division, copying in the prosecutor.


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