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 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:
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:
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.
Gary Muldoon is a member of the Assigned Counsel panel in Monroe County author of Handling a Criminal Case in New York (West Group 2006). Call 1-800-328-4880 or contact the West Group website at www.west.thomson.com. Cost of the soft cover edition is $241.00.
Criminal Law Slanguage of New York, Third Edition, by G. Edward Murray and Gary Muldoon, is published by LexisNexis Publications. Price: $19.00. Contact www.lexis.com.
Gary Muldoon
144 Exchange Boulevard
Rochester, NY 14614
(585) 262-5130
Copyright© 1999-2008 by Gary Muldoon. All rights reserved.