2006 New York Code - Extension Of Time For Taking Appeal.

 
  § 460.30  Extension of time for taking appeal.
    1.   Upon motion to an intermediate appellate court of a defendant who
  desires to take an appeal to such court from  a  judgment,  sentence  or
  order  of a criminal court but has failed to file a notice of appeal, an
  application for leave to appeal, or, as the case may be, an affidavit of
  errors, with such criminal court within the prescribed period,  or  upon
  motion  to  the  court  of appeals of a defendant who desires to take an
  appeal to such court from  an  order  of  a  superior  court  or  of  an
  intermediate  appellate court, but has failed to make an application for
  a certificate granting leave to appeal to the court of appeals,  or  has
  failed to file a notice of appeal with the intermediate appellate court,
  within  the  prescribed period, such intermediate appellate court or the
  court of appeals, as the case may be, may order that the  time  for  the
  taking  of  such appeal or applying for leave to appeal be extended to a
  date not more than thirty days subsequent to the determination  of  such
  motion,  upon the ground that the failure to so file or make application
  in timely fashion resulted from (a) improper conduct of a public servant
  or improper conduct, death or disability of the defendant's attorney, or
  (b) inability of the defendant and his attorney to have communicated, in
  person or by mail, concerning whether an appeal should be  taken,  prior
  to  the  expiration  of  the  time within which to take an appeal due to
  defendant's incarceration in an institution and through no lack  of  due
  diligence  or  fault  of the attorney or defendant.  Such motion must be
  made with due diligence after the time for the taking of such appeal has
  expired, and in any case not more than one year thereafter.
    2.  The motion must be in writing and upon reasonable  notice  to  the
  people and with opportunity to be heard.  The motion papers must contain
  sworn  allegations  of  facts claimed to establish the improper conduct,
  inability to communicate,  or  other  facts  essential  to  support  the
  motion, and the people may file papers in opposition thereto.  After all
  papers have been filed, the court must consider the same for the purpose
  of  ascertaining whether the motion is determinable without a hearing to
  resolve issues of fact.
    3.  If the motion papers allege facts constituting a legal  basis  for
  the  motion,  and  if  the essential allegations are either conclusively
  substantiated by unquestionable documentary proof or are conceded by the
  people to be true, the court must grant the motion.
    4.  If the motion papers do not  allege  facts  constituting  a  legal
  basis  for  the  motion,  or  if an essential allegation is conclusively
  refuted by unquestionable documentary proof,  the  court  may  deny  the
  motion.
    5.  If the court does not determine the motion pursuant to subdivision
  three or four, it must order the criminal court which entered or imposed
  the  judgment,  sentence  or  order  sought  to be appealed to conduct a
  hearing and to make  and  report  findings  of  fact  essential  to  the
  determination  of  such  motion.    Upon  receipt  of  such  report, the
  intermediate appellate court or the court of appeals, as  the  case  may
  be, must determine the motion.
    6.   An order of an intermediate appellate court granting or denying a
  motion made pursuant to this section  is  appealable  to  the  court  of
  appeals  if  (a)  such order states that the determination was made upon
  the law alone, and (b) a judge of the  court  of  appeals,  pursuant  to
  procedure  provided  in  section  460.20,  of  this  chapter,  issues  a
  certificate granting leave to the appellant to appeal to  the  court  of
  appeals.