1. CRIMINAL CASES

• Jurisdiction: United States

1. Criminal Cases

The Constitution disposes of the Court’s criminal jurisdiction in about three lines of text, immediately followed by about twenty times as much verbiage for civil appeals.²⁵ While statutory implementation in the Criminal Procedure Law (CPL) expands on criminal jurisdiction, it is still narrower than its civil counterpart.

By constitutional command and implementing statutes, appeals from judgments and orders involving a death sentence (almost dormant though they presently be)²⁶ bypass the Appellate Division and proceed “as of right” directly to the Court of Appeals.²⁷ The Legislature has the discretion to provide for the Court’s non-capital criminal docket and has not routed any of those cases directly to the Court. Non-death criminal cases, meaning all present day criminal appeals, reach the Court of Appeals, if at all, only after disposition by an intermediate appellate court.

The principal statutes are CPL § 450.90 and CPL § 460.20. CPL § 450.90 authorizes an appeal by either the defendant or the People from the intermediate appellate court to the Court of Appeals, but requires a “certificate granting leave.” This is the source of the almost universal rule in criminal cases: that an appeal to the Court of Appeals does not lie “as of right,” but requires leave granted by a judge. Statute prescribes which judges can grant leave.²⁸ It depends on the intermediate appellate court from which the case is coming.

If the appeal is from an Appellate Division, the certificate may be granted either by a judge of the Court of Appeals or by a justice of the Appellate Division which made the order sought to be appealed.²⁹ If the appeal is from a lower appellate court — either an Appellate Term or a County Court, each of which can hear appeals from still lower courts — the certificate granting leave to appeal may be issued only by a judge of the Court of Appeals, not by a judge or justice of the lower appellate court.³⁰ Note that the Appellate Division is not involved here; further appeal lies not to the Appellate Division, but to the Court of Appeals, and only with the permission of a Court of Appeals judge.³¹

In any instance in which permission is sought from a judge of the Court of Appeals, the application must be made to the Chief Judge by the submission of appropriate papers to the Clerk. The Chief Judge designates the judge who is to hear the application, doing so through the Clerk, who then gives both sides appropriate notice of the...