A. COMMENCING THE APPELLATE PROCESS

• Jurisdiction: United States

A. COMMENCING THE APPELLATE PROCESS

The steps involved in perfecting a criminal appeal to the Court of Appeals are basically the same as those that govern a civil appeal. Chapter Two of this Handbook, which details the procedure in a civil case, therefore applies to the criminal appeal, but with a few exceptions in which the criminal appeal differs sufficiently to make the exceptions noteworthy.

Article 460 of the N.Y. Criminal Procedure Law (hereinafter “CPL”) sets forth the procedure for initiating a criminal appeal. Sections 450.70, 450.80, and 450.90 of the CPL specify what judgments and orders are eligible for determination by the Court of Appeals, and CPL §§ 470.30– 470.40 govern the determination of appeals to the Court of Appeals. All of the cited provisions appear in Appendix C of this Handbook.

The eligibility of issues for determination in the Court of Appeals, which is really a matter of jurisdiction, is complex and was referred to earlier.³⁰¹

If the appeal is from an affirmance by the intermediate appellate court, statute authorizes the Court of Appeals to hear a question presented by the record “regardless of whether such question was raised, considered or determined upon the appeal to the intermediate appellate court.”³⁰² Therefore, so long as an issue was properly preserved in the trial court, it may be presented to the Court of Appeals even though it was not raised in the Appellate Division. However, if an issue was not properly preserved in the trial court, the Court of Appeals is not empowered to consider it under CPL § 470.35,³⁰³ although an “interest of justice” clause contained in CPL § 470.15(6) may permit its consideration by the intermediate appellate court. If the Appellate Division does exercise its “interest of justice” jurisdiction and sets aside a conviction based upon an unpreserved error, its order is not appealable to the Court of Appeals.³⁰⁴ Likewise, the Appellate Division’s decision not to invoke its “interest of justice” discretion is beyond the power of the Court of Appeals to consider.³⁰⁵ The Court of Appeals may, however, in very limited circumstances, address the merits of an issue that was not properly protested in the trial court if it affects the “mode of proceedings” that go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted.³⁰⁶ The “mode of proceedings” exception is very limited and, generally, even constitutional questions must be properly preserved for the Court of Appeals to consider them.³⁰⁷

Virtually all criminal appeals to...