Can I Vacate My Conviction in New York After 17 Years?
Full Question:
Answer:
You haven't stated whether the contempt charge was civil or criminal, so both civil and criminal statues are included below. Generally, there is a time limit of 30 days for filing an appeal. In some cases, an extension of time may be granted, but in a criminal case, the extension is limited to a year after the sentence.
Please see the information at the folllowing link for further discussion:
http://www.courts.state.ny.us/courts/10jd/suffolk/dist/RCD.shtml
Please see the following NY statutes:
§ 5513 N.Y.C.P.L.R. Time to take appeal, cross-appeal or move for
permission to appeal.
(a) Time to take appeal as of right. An appeal as of right must be taken
within thirty days after service by a party upon the appellant of a copy of
the judgment or order appealed from and written notice of its entry, except
that when the appellant has served a copy of the judgment or order and
written notice of its entry, the appeal must be taken within thirty days
thereof.
(b) Time to move for permission to appeal. The time within which a motion
for permission to appeal must be made shall be computed from the date of
service by a party upon the party seeking permission of a copy of the
judgment or order to be appealed from and written notice of its entry, or,
where permission has already been denied by order of the court whose
determination is sought to be reviewed, of a copy of such order and written
notice of its entry, except that when such party seeking permission to
appeal has served a copy of such judgment or order and written notice of
its entry, the time shall be computed from the date of such service. A
motion for permission to appeal must be made within thirty days.
(c) Additional time where adverse party takes appeal or moves for
permission to appeal. A party upon whom the adverse party has served a
notice of appeal or motion papers on a motion for permission to appeal may
take an appeal or make a motion for permission to appeal within ten days
after such service or within the time limited by subdivision (a) or (b) of
this section, whichever is longer, if such appeal or motion is otherwise
available to such party.
(d) Additional time where service of judgment or order and notice of
entry is served by mail or overnight delivery service. Where service of the
judgment or order to be appealed from and written notice of its entry is
made by mail pursuant to paragraph two of subdivision (b) of rule
twenty-one hundred three or by overnight delivery service pursuant to
paragraph six of subdivision (b) of rule twenty-one hundred three of this
chapter, the additional days provided by such paragraphs shall apply to
this action, regardless of which party serves the judgment or order with
notice of entry.
§ 5514 N.Y.C.P.L.R. Extension of time to take appeal or to move for
permission to appeal.
(a) Alternate method of appeal. If an appeal is taken or a motion for
permission to appeal is made and such appeal is dismissed or motion is
denied and, except for time limitations in section 5513, some other method
of taking an appeal or of seeking permission to appeal is available, the
time limited for such other method shall be computed from the dismissal or
denial unless the court to which the appeal is sought to be taken orders
otherwise.
§ 450.10 Crim. Proc. Appeal by defendant to intermediate appellate
court; in what cases authorized as of right.
An appeal to an intermediate appellate court may be taken as of right by
the defendant from the following judgment, sentence and order of a criminal
court:
1. A judgment other than one including a sentence of death, unless the
appeal is based solely upon the ground that a sentence was harsh or
excessive when such sentence was predicated upon entry of a plea of guilty
and the sentence imposed did not exceed that which was agreed to by the
defendant as a condition of the plea and set forth on the record or filed
with the court as required by subdivision five of section 220.50 or
subdivision four of section 340.20;
2. A sentence other than one of death, as prescribed in subdivision one
of section 450.30, unless the appeal is based solely upon the ground that a
sentence was harsh or excessive when such sentence was predicated upon
entry of a plea of guilty and the sentence imposed did not exceed that
which was agreed to by the defendant as a condition of the plea and set
forth in the record or filed with the court as required by subdivision five
of section 220.50 or subdivision four of section 340.20;
3. A sentence including an order of criminal forfeiture entered pursuant
to section 460.30 of the penal law with respect to such forfeiture order.
4. An order, entered pursuant to section 440.40, setting aside a sentence
other than one of death, upon motion of the People.
5. An order denying a motion, made pursuant to subdivision one-a of
section 440.30, for forensic DNA testing of evidence.
§ 450.15 Crim. Proc. Appeal by defendant to intermediate appellate
court; in what cases authorized by permission.
If an appeal by defendant is not authorized as of right pursuant to
section 450.10, the defendant may appeal from the following orders of a
criminal court, provided that a certificate granting leave to appeal is
issued pursuant to section 460.15: 1. An order denying a motion, made
pursuant to section 440.10, to vacate a judgment other than one including a
sentence of death; 2. An order denying a motion by the defendant made
pursuant to section 440.20, to set aside a sentence other than one of
death; 3. A sentence which is not otherwise appealable as of right pursuant
to subdivision one or two of section 450.10.
§ 450.30 Crim. Proc. Appeal from sentence.
1. An appeal by the defendant from a sentence, as authorized by
subdivision two of section 450.10, may be based upon the ground that such
sentence either was (a) invalid as a matter of law, or (b) harsh or
excessive. A sentence is invalid as a matter of law not only when the terms
thereof are unauthorized but also when it is based upon an erroneous
determination that the defendant had a previous valid conviction for an
offense or, in the case of a resentence following a revocation of a
sentence of probation or conditional discharge, upon an improper revocation
of such original sentence. An appeal by the defendant from a sentence, as
authorized by subdivision three of section 450.15, may be based upon the
ground that such sentence was harsh or excessive.
2. An appeal by the people from a sentence, as authorized by
subdivision four of section 450.20, may be based only upon the ground
that such sentence was invalid as a matter of law.
3. An appeal from a sentence, within the meaning of this section and
sections 450.10 and 450.20, means an appeal from either the sentence
originally imposed or from a resentence following an order vacating the
original sentence. For purposes of appeal, the judgment consists of the
conviction and the original sentence only, and when a resentence occurs
more than thirty days after the original sentence, a defendant who has not
previously filed a notice of appeal from the judgment may not appeal from
the judgment, but only from the resentence.
4. When as a result of a successful appeal by the people from a sentence,
the defendant receives a resentence the terms of which are more severe than
those of the original or reversed sentence, the defendant, if he has not
taken an appeal from the judgment, may, even though the period for doing so
as prescribed in section 460.10 has expired, take such an appeal by filing
and serving a notice of appeal, or an affidavit of errors as the case may
be, within thirty days after imposition of the resentence. Upon such an
appeal, only the conviction is reviewable; and any appellate challenge to
the resentence must be made upon a separate appeal therefrom.
§ 460.10 Crim. Proc. Appeal; how taken.
1. Except as provided in subdivisions two and three, an appeal taken as
of right to an intermediate appellate court or directly to the court of
appeals from a judgment, sentence or order of a criminal court is taken as
follows:
(a) A party seeking to appeal from a judgment or a sentence or an order
and sentence included within such judgment, or from a resentence, or from
an order of a criminal court not included in a judgment, must, within
thirty days after imposition of the sentence or, as the case may be, within
thirty days after service upon such party of a copy of an order not
included in a judgment, file with the clerk of the criminal court in which
such sentence was imposed or in which such order was entered a written
notice of appeal, in duplicate, stating that such party appeals therefrom
to a designated appellate court.
(b) If the defendant is the appellant, he must, within such thirty day
period, serve a copy of such notice of appeal upon the district attorney of
the county embracing the criminal court in which the judgment or order
being appealed was entered. If the appeal is directly to the court of
appeals, the district attorney, following such service upon him, must
immediately give written notice thereof to the public servant having
custody of the defendant.
(c) If the people are the appellant, they must, within such thirty day
period, serve a copy of such notice of appeal upon the defendant or upon
the attorney who last appeared for him in the court in which the order
being appealed was entered.
(d) Upon filing and service of the notice of appeal as prescribed in
paragraphs (a), (b) and (c), the appeal is deemed to have been taken.
(e) Following the filing with him of the notice of appeal in duplicate,
the clerk of the court in which the judgment, sentence or order being
appealed was entered or imposed, must endorse upon such instruments the
filing date and must transmit the duplicate notice of appeal to the clerk
of the court to which the appeal is being taken.
2. An appeal taken as of right to a county court or to an appellate term
of the supreme court from a judgment, sentence or order of a local criminal
court in a case in which the underlying proceedings were recorded by a
court stenographer is taken in the manner provided in subdivision one;
except that where no clerk is employed by such local criminal court the
appellant must file the notice of appeal with the judge of such court, and
must further file a copy thereof with the clerk of the appellate court to
which the appeal is being taken.
3. An appeal taken as of right to a county court or to an appellate term
of the supreme court from a judgment, sentence or order of a local criminal
court in a case in which the underlying proceedings were not recorded by a
court stenographer is taken as follows:
(a) Within thirty days after entry or imposition in such local criminal
court of the judgment, sentence or order being appealed, the appellant must
file with such court either (i) an affidavit of errors, setting forth
alleged errors or defects in the proceedings which are the subjects of the
appeal, or (ii) a notice of appeal. Where a notice of appeal is filed, the
appellant must serve a copy thereof upon the respondent in the manner
provided in paragraphs (b) and (c) of subdivision one, and, within thirty
days after the filing thereof, must file with such court an affidavit of
errors.
(b) Not more than three days after the filing of the affidavit of errors,
the appellant must serve a copy thereof upon the respondent or the
respondent's counsel or authorized representative. If the defendant is the
appellant, such service must be upon the district attorney of the county in
which the local criminal court is located. If the people are the appellant,
such service must be upon the defendant or upon the attorney who appeared
for him in the proceedings in the local criminal court.
(c) Upon filing and service of the affidavit of errors as prescribed in
paragraphs (a) and (b), the appeal is deemed to have been taken.
(d) Within ten days after the appellant's filing of the affidavit of
errors with the local criminal court, such court must file with the clerk
of the appellate court to which the appeal has been taken both the
affidavit of errors and the court's return, and must deliver a copy of
such return to each party or a representative thereof as indicated in
paragraph (b). The court's return must set forth or summarize evidence,
facts or occurrences in or adduced at the proceedings resulting in the
judgment, sentence or order, which constitute the factual foundation for
the contentions alleged in the affidavit of errors.
(e) If the local criminal court does not file such return within the
prescribed period, or if it files a defective return, the appellate court,
upon application of the appellant, must order such local criminal court to
file a return or an amended return, as the case may be, within a designated
time which such appellate court deems reasonable.
4. An appeal by a defendant to an intermediate appellate court by
permission, pursuant to section 450.15, is taken as follows:
(a) Within thirty days after service upon the defendant of a copy of the
order sought to be appealed, the defendant must make application, pursuant
to section 460.15, for a certificate granting leave to appeal to the
intermediate appellate court.
(b) If such application is granted and such certificate is issued, the
defendant, within fifteen days after issuance thereof, must file with the
criminal court in which the order sought to be appealed was rendered the
certificate granting leave to appeal together with a written notice of
appeal, or if the appeal is from a local criminal court in a case in which
the underlying proceedings were not recorded by a court stenographer,
either (i) an affidavit of errors, or (ii) a notice of appeal. In all other
respects the appeal shall be taken as provided in subdivisions one, two and
three.
5. An appeal to the court of appeals from an order of an intermediate
appellate court is taken as follows:
(a) Within thirty days after service upon the appellant of a copy of the
order sought to be appealed, the appellant must make application, pursuant
to section 460.20, for a certificate granting leave to appeal to the court
of appeals. The appellate division of each judicial department shall adopt
rules governing the procedures for service of a copy of such order.
(b) If such application is granted, the issuance of the certificate
granting leave to appeal shall constitute the taking of the appeal.
6. Where a notice of appeal, an affidavit of errors, an application for
leave to appeal to an intermediate appellate court, or an application for
leave to appeal to the court of appeals is premature or contains an
inaccurate description of the judgment, sentence or order being or sought
to be appealed, the appellate court, in its discretion, may, in the
interest of justice, treat such instrument as valid. Where an appellant
files a notice of appeal within the prescribed period but, through mistake,
inadvertence or excusable neglect, omits to serve a copy thereof upon the
respondent within the prescribed period, the appellate court to which the
appeal is sought to be taken may, in its discretion and for good cause
shown, permit such service to be made within a designated period of time,
and upon such service the appeal is deemed to be taken.
§ 460.30 Crim. Proc. 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.
(b) Disability of attorney. If the attorney for an aggrieved party dies,
is removed or suspended, or becomes physically or mentally incapacitated or
otherwise disabled before the expiration of the time limited for taking an
appeal or moving for permission to appeal without having done so, such
appeal may be taken or such motion for permission to appeal may be served
within sixty days from the date of death, removal or suspension, or
commencement of such incapacity or disability.
(c) Other extensions of time; substitutions or omissions. No extension of
time shall be granted for taking an appeal or for moving for permission to
appeal except as provided in this section, section 1022, or section 5520.
