Appeal; how taken

§ 460.10 Appeal; how taken.\n 1. Except as provided in subdivisions two and three, an appeal taken\nas of right to an intermediate appellate court or directly to the court\nof appeals from a judgment, sentence or order of a criminal court is\ntaken as follows:\n (a) A party seeking to appeal from a judgment or a sentence or an\norder and sentence included within such judgment, or from a resentence,\nor from an order of a criminal court not included in a judgment, must,\nwithin thirty days after imposition of the sentence or, as the case may\nbe, within thirty days after service upon such party of a copy of an\norder not included in a judgment, file with the clerk of the criminal\ncourt in which such sentence was imposed or in which such order was\nentered a written notice of appeal, in duplicate, stating that such\nparty appeals therefrom to a designated appellate court.\n (b) If the defendant is the appellant, he must, within such thirty day\nperiod, serve a copy of such notice of appeal upon the district attorney\nof the county embracing the criminal court in which the judgment or\norder being appealed was entered. If the appeal is directly to the court\nof appeals, the district attorney, following such service upon him, must\nimmediately give written notice thereof to the public servant having\ncustody of the defendant.\n (c) If the people are the appellant, they must, within such thirty day\nperiod, serve a copy of such notice of appeal upon the defendant or upon\nthe attorney who last appeared for him in the court in which the order\nbeing appealed was entered.\n (d) Upon filing and service of the notice of appeal as prescribed in\nparagraphs (a), (b) and (c), the appeal is deemed to have been taken.\n (e) Following the filing with him of the notice of appeal in\nduplicate, the clerk of the court in which the judgment, sentence or\norder being appealed was entered or imposed, must endorse upon such\ninstruments the filing date and must transmit the duplicate notice of\nappeal to the clerk of the court to which the appeal is being taken.\n 2. An appeal taken as of right to a county court or to an appellate\nterm of the supreme court from a judgment, sentence or order of a local\ncriminal court in a case in which the underlying proceedings were\nrecorded by a court stenographer is taken in the manner provided in\nsubdivision one; except that where no clerk is employed by such local\ncriminal court the appellant must file the notice of appeal with the\njudge of such court, and must further file a copy thereof with the clerk\nof the appellate court to which the appeal is being taken.\n 3. An appeal taken as of right to a county court or to an appellate\nterm of the supreme court from a judgment, sentence or order of a local\ncriminal court in a case in which the underlying proceedings were not\nrecorded by a court stenographer is taken as follows:\n (a) Within thirty days after entry or imposition in such local\ncriminal court of the judgment, sentence or order being appealed, the\nappellant must file with such court either (i) an affidavit of errors,\nsetting forth alleged errors or defects in the proceedings which are the\nsubjects of the appeal, or (ii) a notice of appeal. Where a notice of\nappeal is filed, the appellant must serve a copy thereof upon the\nrespondent in the manner provided in paragraphs (b) and (c) of\nsubdivision one, and, within sixty days after the appellant receives a\ntranscript of the electronically recorded proceedings, must file with\nsuch court an affidavit of errors.\n (b) Not more than three days after the filing of the affidavit of\nerrors, the appellant must serve a copy thereof upon the respondent or\nthe respondent's counsel or authorized representative. If the defendant\nis the appellant, such service must be upon the district attorney of the\ncounty in which the local criminal court is located. If the people are\nthe appellant, such service must be upon the defendant or upon the\nattorney who appeared for him in the proceedings in the local criminal\ncourt.\n (c) Upon filing and service of the affidavit of errors as prescribed\nin paragraphs (a) and (b), the appeal is deemed to have been taken.\n (d) Within ten days after the appellant's filing of the affidavit of\nerrors with the local criminal court, such court must file with the\nclerk of the appellate court to which the appeal has been taken both the\naffidavit of errors and the court's return, and must deliver a copy of\nsuch return to each party or a representative thereof as indicated in\nparagraph (b). The court's return must set forth or summarize evidence,\nfacts or occurrences in or adduced at the proceedings resulting in the\njudgment, sentence or order, which constitute the factual foundation for\nthe contentions alleged in the affidavit of errors.\n (e) If the local criminal court does not file such return within the\nprescribed period, or if it files a defective return, the appellate\ncourt, upon application of the appellant, must order such local criminal\ncourt to file a return or an amended return, as the case may be, within\na designated time which such appellate court deems reasonable.\n 4. An appeal by a defendant to an intermediate appellate court by\npermission, pursuant to section 450.15, is taken as follows:\n (a) Within thirty days after service upon the defendant of a copy of\nthe order sought to be appealed, the defendant must make application,\npursuant to section 460.15, for a certificate granting leave to appeal\nto the intermediate appellate court.\n (b) If such application is granted and such certificate is issued, the\ndefendant, within fifteen days after issuance thereof, must file with\nthe criminal court in which the order sought to be appealed was rendered\nthe certificate granting leave to appeal together with a written notice\nof appeal, or if the appeal is from a local criminal court in a case in\nwhich the underlying proceedings were not recorded by a court\nstenographer, either (i) an affidavit of errors, or (ii) a notice of\nappeal. In all other respects the appeal shall be taken as provided in\nsubdivisions one, two and three.\n 5. An appeal to the court of appeals from an order of an intermediate\nappellate court is taken as follows:\n (a) Within thirty days after service upon the appellant of a copy of\nthe order sought to be appealed, the appellant must make application,\npursuant to section 460.20, for a certificate granting leave to appeal\nto the court of appeals. The appellate division of each judicial\ndepartment shall adopt rules governing the procedures for service of a\ncopy of such order.\n (b) If such application is granted, the issuance of the certificate\ngranting leave to appeal shall constitute the taking of the appeal.\n 6. Where a notice of appeal, an affidavit of errors, an application\nfor leave to appeal to an intermediate appellate court, or an\napplication for leave to appeal to the court of appeals is premature or\ncontains an inaccurate description of the judgment, sentence or order\nbeing or sought to be appealed, the appellate court, in its discretion,\nmay, in the interest of justice, treat such instrument as valid. Where\nan appellant files a notice of appeal within the prescribed period but,\nthrough mistake, inadvertence or excusable neglect, omits to serve a\ncopy thereof upon the respondent within the prescribed period, the\nappellate court to which the appeal is sought to be taken may, in its\ndiscretion and for good cause shown, permit such service to be made\nwithin a designated period of time, and upon such service the appeal is\ndeemed to be taken.\n