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Article 470 - NY Criminal Procedure Law

APPEALS--DETERMINATION THEREOF

Section Description
470.05Determination of appeals; general criteria.
470.10Determination of appeals; definitions of terms.
470.15Determination of appeals by intermediate appellate courts; scope of review.
470.20Determination of appeals by intermediate appellate courts; corrective action upon reversal or modification.
470.25Determination of appeals by intermediate appellate courts; form and content of order.
470.30Determination by court of appeals of appeals taken directly thereto from judgments and orders of criminal courts.
470.35Determination by court of appeals of appeals from orders of intermediate appellate courts; scope of review.
470.40Determination by court of appeals of appeals from intermediate appellate courts; corrective action upon reversal or modification.
470.45Remission of case by appellate court to criminal court upon reversal or modification of judgment; action by criminal court.
470.50Reargument of appeal; motion and criteria for.
470.55Status of accusatory instrument upon order of new trial or restoration of action to pre-pleading status.
470.60Dismissal of appeal
S 470.05 Determination of appeals; general criteria.
  1.  An appellate court must determine an appeal without regard to
technical errors or defects which do not affect the substantial rights
of the parties.
  2.  For purposes of appeal, a question of law with respect to a ruling
or instruction of a criminal court during a trial or proceeding is
presented when a protest thereto was registered, by the party claiming
error, at the time of such ruling or instruction or at any subsequent
time when the court had an opportunity of effectively changing the same.
Such protest need not be in the form of an "exception" but is sufficient
if the party made his position with respect to the ruling or instruction
known to the court, or if in reponse to a protest by a party, the court
expressly decided the question raised on appeal.  In addition, a party
who without success has either expressly or impliedly sought or
requested a particular ruling or instruction, is deemed to have thereby
protested the court`s ultimate disposition of the matter or failure to
rule or instruct accordingly sufficiently to raise a question of law
with respect to such disposition or failure regardless of whether any
actual protest thereto was registered.

S 470.10 Determination of appeals; definitions of terms.
  The following definitions are applicable to this article:
  1.  "Reversal" by an appellate court of a judgment, sentence or order
of another court means the vacating of such judgment, sentence or order.
  2.  "Modification" by an appellate court of a judgment or order of
another court means the vacating of a part thereof and affirmance of the
remainder.
  3.  "Corrective action" means affirmative action taken or directed by
an appellate court upon reversing or modifying a judgment, sentence or
order of another court, which disposes of or continues the case in a
manner consonant with the determinations and principles underlying the
reversal or modification.

S 470.15 Determination of appeals by intermediate appellate courts;
              scope of review.
  1.  Upon an appeal to an intermediate appellate court from a judgment,
sentence or order of a criminal court, such intermediate appellate court
may consider and determine any question of law or issue of fact
involving error or defect in the criminal court proceedings which may
have adversely affected the appellant.
  2.  Upon such an appeal, the intermediate appellate court must either
affirm or reverse or modify the criminal court judgment, sentence or
order.  The ways in which it may modify a judgment include, but are not
limited to, the following:
  (a)  Upon a determination that the trial evidence adduced in support
of a verdict is not legally sufficient to establish the defendant`s
guilt of an offense of which he was convicted but is legally sufficient
to establish his guilt of a lesser included offense, the court may
modify the judgment by changing it to one of conviction for the lesser
offense:
  (b)  Upon a determination that the trial evidence is not legally
sufficient to establish the defendant`s guilt of all the offenses of
which he was convicted but is legally sufficient to establish his guilt
of one or more of such offenses, the court may modify the judgment by
reversing it with respect to the unsupported counts and otherwise
affirming it;
  (c)  Upon a determination that a sentence imposed upon a valid
conviction is illegal or unduly harsh or severe, the court may modify
the judgment by reversing it with respect to the sentence and by
otherwise affirming it.
  3.  A reversal or a modification of a judgment, sentence or order must
be based upon a determination made:
  (a)  Upon the law; or
  (b)  Upon the facts; or
  (c)  As a matter of discretion in the interest of justice; or
  (d)  Upon any two or all three of the bases specified in paragraphs
(a), (b) and (c).
  4.  The kinds of determinations of reversal or modification deemed to
be upon the law include, but are not limited to, the following:
  (a)  That a ruling or instruction of the court, duly protested by the
defendant, as prescribed in subdivision two of section 470.05, at a
trial resulting in a judgment, deprived the defendant of a fair trial;
  (b)  That evidence adduced at a trial resulting in a judgment was not
legally sufficient to establish the defendant`s guilt of an offense of
which he was convicted;
  (c)  That a sentence was unauthorized, illegally imposed or otherwise
invalid as a matter of law.
  5.  The kinds of determinations of reversal or modification deemed to
be on the facts include, but are not limited to, a determination that a
verdict of conviction resulting in a judgment was, in whole or in part,
against the weight of the evidence.
  6.  The kinds of determinations of reversal or modification deemed to
be made as a matter of discretion in the interest of justice include,
but are not limited to, the following:
  (a)  That an error or defect occurring at a trial resulting in a
judgment, which error or defect was not duly protested at trial as
prescribed in subdivision two of section 470.05 so as to present a
question of law, deprived the defendant of a fair trial;
  (b)  That a sentence, though legal, was unduly harsh or severe.

S 470.20 Determination of appeals by intermediate appellate courts;
              corrective action upon reversal or modification.
  Upon reversing or modifying a judgment, sentence or order of a
criminal court, an intermediate appellate court must take or direct such
corrective action as is necessary and appropriate both to rectify any
injustice to the appellant resulting from the error or defect which is
the subject of the reversal or modification and to protect the rights of
the respondent.  The particular corrective action to be taken or
directed is governed in part by the following rules:
  1.  Upon a reversal of a judgment after trial for error or defect
which resulted in prejudice to the defendant or deprived him of a fair
trial, the court must, whether such reversal be on the law or as a
matter of discretion in the interest of justice, order a new trial of
the accusatory instrument and remit the case to the criminal court for
such action.
  2.  Upon a reversal of a judgment after trial for legal insufficiency
of trial evidence, the court must dismiss the accusatory instrument.
  3.  Upon a modification of a judgment after trial for legal
insufficiency of trial evidence with respect to one or more but not all
of the offenses of which the defendant was convicted, the court must
dismiss the count or counts of the accusatory instrument determined to
be legally unsupported and must otherwise affirm the judgment.  In such
case, it must either reduce the total sentence to that imposed by the
criminal court upon the counts with respect to which the judgment is
affirmed or remit the case to the criminal court for re-sentence upon
such counts; provided that nothing contained in this paragraph precludes
further sentence reduction in the exercise of the appellate court`s
discretion pursuant to subdivision six.
  4.  Upon a modification of a judgment after trial which reduces a
conviction of a crime to one for a lesser included offense, the court
must remit the case to the criminal court with a direction that the
latter sentence the defendant accordingly.
  5.  Upon a reversal or modification of a judgment after trial upon the
ground that the verdict, either in its entirety or with respect to a
particular count or counts, is against the weight of the trial evidence,
the court must dismiss the accusatory instrument or any reversed count.
  6.  Upon modifying a judgment or reversing a sentence as a matter of
discretion in the interest of justice upon the ground that the sentence
is unduly harsh or severe, the court must itself impose some legally
authorized lesser sentence.

S 470.25 Determination of appeals by intermediate appellate courts;
              form and content of order.
  1.  An order of an intermediate appellate court which affirms a
judgment, sentence or order of a criminal court need only state such
affirmance.
  2.  An order of an intermediate appellate court which reverses or
modifies a judgment, sentence or order of a criminal court must contain
the following:
  (a)  A statement of whether the determination was upon the law or upon
the facts or as a matter of discretion in the interest of justice, or
upon any specified two or all three of such bases; and
  (b)  If the decision is rendered without opinion, a brief statement of
the specific grounds of the reversal or modification; and
  (c)  A statement of the corrective action taken or directed by the
court; and
  (d)  If the determination is exclusively upon the law, a statement of
whether or not the facts upon which the criminal court`s judgment,
sentence or order is based have been considered and determined to have
been established.  In the absence of such a statement, it is presumed
that the intermediate appellate court did not consider or make any
determination with respect to such facts.

S 470.30 Determination by court of appeals of appeals taken directly
              thereto from judgments and orders of criminal courts.
  1. Wherever appropriate, the rules set forth in sections 470.15 and
470.20, governing the consideration and determination by intermediate
appellate courts of appeals thereto from judgments and orders of
criminal courts, and prescribing their scope of review and the
corrective action to be taken by them upon reversal or modification,
apply equally to the consideration and determination by the court of
appeals of appeals taken directly thereto, pursuant to sections 450.70
and 450.80, from judgments and orders of superior criminal courts.
  2. Whenever a sentence of death is imposed, the judgment and sentence
shall be reviewed on the record by the court of appeals.  Review by the
court of appeals pursuant to subdivision one of section 450.70 may not
be waived.
  3. With regard to the sentence, the court shall, in addition to
exercising the powers and scope of review granted under subdivision one
of this section, determine:
  (a) whether the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary or legally impermissible
factor including whether the imposition of the verdict or sentence was
based upon the race of the defendant or a victim of the crime for which
the defendant was convicted;
  (b) whether the sentence of death is excessive or disproportionate to
the penalty imposed in similar cases considering both the crime and the
defendant. In conducting such review the court, upon request of the
defendant, in addition to any other determination, shall review whether
the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases by virtue of the race of the defendant or a
victim of the crime for which the defendant was convicted; and
  (c) whether the decision to impose the sentence of death was against
the weight of the evidence.
  4. The court shall include in its decision:
  (a) the aggravating and mitigating factors established in the record
on appeal; and
  (b) those similar cases it took into consideration.
  5. In addition to exercising any other corrective action pursuant to
subdivision one of this section, the court, with regard to review of a
sentence of death, shall be authorized to:
  (a) affirm the sentence of death; or
  (b) set the sentence aside and remand the case for resentencing
pursuant to the procedures set forth in section 400.27 for a
determination as to whether the defendant shall be sentenced to death,
life imprisonment without parole or to a term of imprisonment for the
class A-I felony of murder in the first degree other than a sentence of
life imprisonment without parole; or
  (c) set the sentence aside and remand the case for resentencing by the
court for a determination as to whether the defendant shall be sentenced
to life imprisonment without parole or to a term of imprisonment for the
class A-I felony of murder in the first degree other than a sentence of
life imprisonment without parole.

S 470.35 Determination by court of appeals of appeals from orders of
              intermediate appellate courts; scope of review.
  1.  Upon an appeal to the court of appeals from an order of an
intermediate appellate court affirming a judgment, sentence or order of
a criminal court, the court of appeals may consider and determine not
only questions of law which were raised or considered upon the appeal to
the intermediate appellate court, but also any question of law involving
alleged error or defect in the criminal court proceedings resulting in
the original criminal court judgment, sentence or order, regardless of
whether such question was raised, considered or determined upon the
appeal to the intermediate appellate court.
  2.  Upon an appeal to the court of appeals from an order of an
intermediate appellate court reversing or modifying a judgment, sentence
or order of a criminal court, the court of appeals may consider and
determine:
  (a)  Any question of law which was determined by the intermediate
appellate court and which, as so determined, constituted a basis for
such court`s order of reversal or modification; and
  (b)  Any other question of law involving alleged or possible error or
defect in the criminal court proceedings resulting in the original
judgment, sentence or order which may have adversely affected the party
who was appellant in the intermediate appellate court and who is
respondent in the court of appeals.  The court of appeals is not
precluded from considering and determining such a question by the
circumstance that it was not considered or determined by the
intermediate appellate court, or that it did not constitute a basis for
such court`s reversal or modification, or that the party who may have
been adversely affected thereby is the respondent rather than the
appellant in the court of appeals; and the court of appeals, even though
rejecting the intermediate appellate court`s reasons for its order of
reversal or modification, may affirm or modify such order upon the basis
of such other questions; and
  (c)  Any question concerning the legality of the corrective action
taken by the intermediate appellate court.
  3.  Upon such an appeal, the court must affirm, reverse or modify the
intermediate appellate court order.

S 470.40 Determination by court of appeals of appeals from intermediate
            appellate courts; corrective action upon reversal or modification.
  1.  Upon reversing or modifying an order of an intermediate appellate
court affirming a criminal court judgment, sentence or order, the court
of appeals must take or direct such corrective action as the
intermediate appellate court would, pursuant to section 470.20, have
been required or authorized to take or direct had it reversed or
modified the criminal court judgment, sentence or order upon the same
ground or grounds.
  2.  Upon reversing an order of an intermediate appellate court
reversing or modifying a criminal court judgment, sentence or order upon
the ground that questions of law were erroneously determined by the
intermediate appellate court in favor of the party appellant therein,
the court of appeals must take or direct corrective action as follows:
  (a)  If the facts underlying the original criminal court judgment,
sentence or order were considered and determined to have been
established by the intermediate appellate court, the court of appeals
must reinstate and affirm the original criminal court judgment, sentence
or order and remit the case to such criminal court for whatever further
proceedings may be necessary to complete the action or proceedings
therein; provided, however, that where such facts were applied to an
erroneous determination of law, the court of appeals may remit the case
to the intermediate appellate court for a further determination of the
facts;
  (b)  If the facts underlying the original criminal court judgment,
sentence or order were not, or are presumed not to have been, considered
and determined by the intermediate appellate court, the court of appeals
must remit the case to such intermediate appellate court for
determination of the facts.
  3.  Upon modifying an intermediate appellate court order reversing or
modifying a criminal court judgment or order, upon the ground that
corrective action taken or directed by the intermediate appellate court
was illegal, the court of appeals must either (a) itself take or direct
the appropriate corrective action or (b) remit the case to the
intermediate appellate court for appropriate corrective action by the
latter.

S 470.45 Remission of case by appellate court to criminal court upon
          reversal or modification of judgment; action by criminal court.
  Upon reversing or modifying a judgment and directing corrective
action, an appellate court must remit the case to the criminal court in
which the judgment was entered.  Such criminal court must execute the
direction of the appellate court and must, depending upon the nature of
such direction, either discharge the defendant from custody, exonerate
his bail or issue a securing order.

S 470.50 Reargument of appeal; motion and criteria for.
  1.  After its determination of an appeal taken pursuant to article
four hundred fifty, an appellate court, in the interest of justice and
for good cause shown, may in its discretion, upon motion of a party
adversely affected by its determination, or upon its own motion, order a
reargument or reconsideration of the appeal.  Upon such an order the
court may either direct further oral argument by the parties or confine
its reconsideration to re-examination of the issues as previously argued
or submitted upon the appeal proper.  Upon ordering a reargument or
reconsideration of an appeal, the court must again determine the appeal
pursuant to the provisions of this article.
  2.  The court of appeals may promulgate rules limiting the time within
which a motion for reargument of appeals determined by such court may be
made, and the appellate division of each department may similarly
promulgate such rules with respect to appeals determined by such
appellate division and appeals determined by the other intermediate
appellate courts located within such department.  In the absence of any
such rule of limitation, a motion for reargument may be made at any
time.

S 470.55 Status of accusatory instrument upon order of new trial or
              restoration of action to pre-pleading status.
  1.  Upon a new trial of an accusatory instrument resulting from an
appellate court order reversing a judgment and ordering such new trial,
such accusatory instrument is deemed to contain all the counts and to
charge all the offenses which it contained and charged at the time the
previous trial was commenced, regardless of whether any count was
dismissed by the court in the course of such trial, except (a) those
upon or of which the defendant was acquitted or deemed to have been
acquitted, and (b) those dismissed upon appeal or upon some other
post-judgment order.
  2.  Upon an appellate court order which reverses a judgment based upon
a plea of guilty to an accusatory instrument or a part thereof, but
which does not dismiss the entire accusatory instrument, the criminal
action is, in the absence of express appellate court direction to the
contrary, restored to its pre-pleading status and the accusatory
instrument is deemed to contain all the counts and to charge all the
offenses which it contained and charged at the time of the entry of the
plea, except those dismissed upon appeal or upon some other
post-judgment order.  Where the plea of guilty was entered and accepted,
pursuant to subdivision three of section 220.30, upon the condition that
it constituted a complete disposition and dismissal not only of the
accusatory instrument underlying the judgment reversed but also of one
or more other accusatory instruments against the defendant then pending
in the same court, the appellate court order of reversal completely
restores such other accusatory instruments; and such is the case even
where the order of reversal dismisses the entire accusatory instrument
underlying the judgment reversed.

S 470.60 Dismissal of appeal.
  1.  At any time after an appeal has been taken and before
determination thereof, the appellate court in which such appeal is
pending may, upon motion of the respondent or upon its own motion,
dismiss such appeal upon the ground of mootness, lack of jurisdiction to
determine it, failure of timely prosecution or perfection thereof, or
other substantial defect, irregularity or failure of action by the
appellant with respect to the prosecution or perfection of such appeal.
  2.  Such motion must be made upon reasonable notice to the appellant
and with opportunity to be heard.  If the people are the appellant, such
notice must be served upon the appropriate district attorney either
personally or by ordinary mail.  If the appellant is a defendant, such
notice must be served upon him by ordinary mail at his last known place
of residence or, if he is imprisoned, at the institution in which he is
confined, and similar notice must be served upon the attorney, if any,
who last appeared for him.  Upon determination of the motion, a copy of
the order entered thereon must similarly be served.
  3.  Provided that a certificate granting leave to appeal is issued
pursuant to this subdivision, an appeal may be taken, in the manner
prescribed in subdivision four of section 460.10, to the court of
appeals from an order of an intermediate appellate court dismissing an
appeal thereto.  Such appeal may be based either upon the ground that
the dismissal was invalid as a matter of law or upon the ground that it
constituted an abuse of discretion.  A certificate granting leave to
appeal from such an order of dismissal may be issued only by a judge of
the court of appeals upon an application made in the manner prescribed
in paragraph (b) of subdivision three of section 460.20.  Upon such an
appeal, the court of appeals must either affirm or reverse the
intermediate appellate court order.

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