§ 460.60 Stay of judgment pending appeal to court of appeals from
intermediate appellate court.
1. (a) A judge who, pursuant to section 460.20 of this chapter, has
received an application for a certificate granting a defendant leave to
appeal to the court of appeals from an order of an intermediate
appellate court affirming or modifying a judgment including a sentence
of imprisonment, a sentence of imprisonment, or an order appealed
pursuant to section 450.15 of this chapter, of a criminal court, may,
upon application of such defendant-appellant issue an order both (i)
staying or suspending the execution of the judgment pending the
determination of the application for leave to appeal, and, if that
application is granted, staying or suspending the execution of the
judgment pending the determination of the appeal, and (ii) either
releasing the defendant on his own recognizance or continuing bail as
previously determined or fixing bail pursuant to the provisions of
article five hundred thirty. Such an order is effective immediately
and that phase of the order staying or suspending execution of the
judgment does not become effective unless and until the defendant is
released, either on his own recognizance or upon the posting of bail. (b) If the application for leave to appeal is denied, the stay or
suspension pending the application automatically terminates upon the
signing of the certificate denying leave. Upon such termination, the
certificate denying leave must be sent to the criminal court in which
the original judgment was entered, and the latter must proceed in the
manner provided in subdivision five of section 460.50 of this chapter.
2. An application pursuant to subdivision one must be made upon
reasonable notice to the people, and the people must be accorded
adequate opportunity to appear in opposition thereto. Such an
application may be made immediately after the entry of the order sought
to be appealed or at any subsequent time during the pendency of the
appeal. Not more than one application may be made pursuant to this
section.
3. Notwithstanding the provisions of subdivision one, if within one
hundred twenty days after the issuance of a certificate granting leave
to appeal, the appeal or prospective appeal has not been brought to
argument in or submitted to the court of appeals, the operation of an
order issued pursuant to subdivision one of this section terminates and
the defendant must surrender himself to the criminal court in which the
original judgment was entered in order that execution of such judgment
be commenced or resumed; except that this subdivision does not apply
where the court of appeals has (a) extended the time for argument or
submission of the appeal to a date beyond the specified period of one
hundred twenty days and (b) upon application of the defendant expressly
ordered that the operation of such order continue until the date of the
determination of the appeal or some other designated future date or
occurrence.
4. Where the defendant is at liberty during the pendency of an appeal
as a result of an order issued pursuant to this section, the court of
appeals upon affirmance of the judgment or order, must, by appropriate
certificate, remit the case to the criminal court in which the judgment
was entered, and the latter must proceed in the manner provided in
subdivision five of section 460.50 of this chapter.
