Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 6, #3©

Issue: Revisions to Court of Appeals Rules in Criminal Cases

New rules for the Court of Appeals went into effect September 2005. For the criminal defense practitioner, the most important rule is 22 NYCRR §500.20, “Criminal Leave Applications.”


A defendant who is convicted of an offense in a New York State court has the right to appeal to an intermediate appellate court. After that, there is no “right” to appeal to the highest court, the New York Court of Appeals. Rather, the defendant must seek permission to appeal, from either the Appellate Division or the Court of Appeals.


Leave application to Court of Appeals

The application for leave to appeal is a relatively simple process, initiated by letter. The letter is sent to the attention of the Clerk of the Court of Appeals and must state:

  • The names of all codefendants in the trial court, and the status of their appeals.
  • Whether an application has been made to the Appellate Division.
  • Whether oral argument of the leave application, in person or via conference call, is requested.
  • The grounds for requesting leave to appeal. “Particular written attention shall be given to reviewability and preservation of error, identifying and reproducing the particular portions of the record where the questions sought to be reviewed are raised and preserved.” § 500.20(a)(4).

The Court of Appeals does not assign counsel for purposes of a leave application. §§ 500.20(e). Defense counsel who was assigned or retained at the intermediate court level is required to make the leave application, if requested. Defense counsel must advise the client of the right to seek leave to appeal. 22 NYCRR § 1022.11(b).


Leave application to Appellate Division

Instead of applying to the Court of Appeals for leave to appeal, an appellant may seek leave to an intermediate appellate judge. The request is made to a member of the panel that decided the appeal, such as a dissenting judge. CPL 460.20(2)(a)(ii); § 1000.13(p)(4)(iii). This application is made by motion, on notice to opposing counsel.


Attachments to leave application

The leave application should include:

  • The order of the Appellate Division (or other intermediate court) being appealed from.
  • Copies of all briefs filed with the Appellate Division -- appellant, answering, reply, and pro se.
  • Relevant opinions or memoranda of the courts below, along with other papers relied on in furtherance of the application. § 500.20(b).

Assignment of leave application

The leave application is assigned to an individual Court of Appeals judge. The individual judge determines whether to allow oral argument of the application. § 500.20(c).


Reargument / reconsideration

If reargument or reconsideration is sought, this must be made within 30 days of the certificate determining the application. § 500.20(d).


Proof of service

With virtually any paper sent to the Court of Appeals, include proof that the adverse party was served.


Stay requests

A request for stay of sentence may be made as part of the request for leave to appeal or separately. CPL 460.60, 530.50. The stay request should include:

  • Whether the relief was previously requested
  • Whether the defendant is currently incarcerated
  • Incarceration status of any codefendants
  • If defendant is at liberty; if so, whether a surrender date has been set and the conditions of release. § 500.20(f).

Time for application

The application for leave to appeal must be made within 30 days of service of the order that is sought to be appealed. CPL 460.10(5)(a).


Extension of time for leave to appeal

If the leave application is not timely made, a motion for extension to file for leave to appeal is to be made on motion, on one set of motion papers. §§ 500.20(g), 500.21. This must be made within one year of when the motion should have been made. CPL 460.30.


Motion practice

Motions at the Court of Appeals, like Fourth Department motions, are decided on papers, without oral argument. Motions are returnable on a Monday or first business day of the week. § 500.21(a). Moving papers are to be filed by noon the Friday preceding the return date. § 500.21(c). The moving papers are to be in a single document, bound on the left. §500.1(d).

An original and one copy of motion papers are to be filed. One copy is to be served on opposing counsel. § 500.21(d)(3). With multiple copies filed, the original document shall be identified on its cover. § 500.1(c).


One set of papers are required where the defendant is indigent. To establish indigency, the motion papers should request poor person relief and include either the information required by CPLR 1101(c) or a copy of the order below that granted poor person relief with an affidavit that the same financial situation exists now. § 500.21(g).


Leave granted

If a certificate granting leave to appeal is issued, no further notice of appeal needs to be filed. A “preliminary appeal statement” must be filed within 10 days of the issuance of the certificate. §500.9.


Scheduling letter

After the preliminary appeal statement is filed, the clerk’s office will issue a scheduling letter for filing the record material and briefs. §500.12(a).


Assignment of counsel, poor person status

As noted above, the Court of Appeals does not assign counsel for purposes of requesting leave to appeal. If leave is granted, counsel may move for assignment. §500.20(e). Counsel may also move for poor person status. §500.21(g).


This motion is on one set of papers. Include information required by CPLR 1101(c), or a copy of the order granting poor person relief below and an affidavit that the same financial circumstances exist as when the previous order was issued.


Briefs

Briefs should include a table of contents, table of cases and authorities. Official citations should be referenced. §500.1(c). Cover of brief: white. §500.13.

 

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