Acting pursuant to the rulemaking authority invested in this Court by New York Constitution, article VI, § 30, Judiciary Law § 51 and Laws of 1995, chapter 1, the Court of Appeals establishes these Rules of the Court of Appeals in Capital Cases. Unless otherwise specified, these Rules apply to all appeals taken pursuant to CPL 450.70, 450.80 and 460.40(3).

§ 510.1 Papers.

(a) All records, briefs, appendices, motion papers and other required submissions, whether printed, typewritten, or reproduced in other form (no carbon copies), shall conform to CPLR 5529, shall be bound or securely fastened on the left edge, and shall have a fluorescent green sticker on the spine. Pages shall be consecutively numbered and each document filed shall contain an index or table of contents. Records and appendices shall be divided into volumes not to exceed two inches in thickness. Where New York authorities are cited in any paper, New York Official Law Report citations must be included.

(b) Companion filings on interactive compact disk, read-only memory (CD-ROM).

(1) (a) The submission of briefs by parties and amici curiae, of records or appendices, on interactive compact disk, read-only memory (CD-ROM) as companions to the requisite number of printed briefs, records and appendices filed and served in accordance with the Rules of the Court of Appeals in Capital Cases is allowed and encouraged, provided that all parties have consented to the filing of the companion CD-ROM brief and record or appendix.

(b) The Court may, by order on motion of any party or sua sponte, require such filing.

(2) The companion CD-ROM brief, record or appendix must comply with the current technical specifications available from the clerk’s office and must be packaged in a box or boxes with a green fluorescent sticker on the spine.

(3) The companion CD-ROM brief, record or appendix must be identical in content and format (including page numbering) to the printed version, except that each also may provide electronic links (hyperlinks) to the
complete text of any authorities cited therein, and to any document or other material constituting the record on appeal.

(4) No fewer than 10 disks or sets of disks must be filed, with (a) proof of service of at least one disk or set on each other party and amicus curiae and (b) a copy of either the parties’ stipulation or the Court’s order permitting or requesting such filing.

(5) Appellant’s filing and respondent’s filing, or a joint filing by appellant and respondent, is due 10 days after the final due date for filing appellant’s reply brief (see section 510.8[b] of this Part).

(6) Each amicus curiae’s filing is due 10 days after the due date for filing the respective amicus brief.

(a) Where a capital trial results in a judgment including a sentence of death, capital defense counsel shall timely take an appeal. CPL 470.30(2) provides that a defendant sentenced to death may not waive review pursuant to CPL 450.70(1) of the judgment and sentence.

(b) Immediately after being served with an adverse order disposing of a capital matter appealable pursuant to CPL 450.70(2), (3), or (4) or CPL 460.40(3), capital defense counsel shall advise the defendant in writing of the right to appeal. Counsel shall ascertain whether the defendant wishes to appeal and, if so, shall timely take the appeal.

(c) In all instances, capital defense counsel shall advise the defendant in writing of the time limitations for taking an appeal, the manner of taking an appeal and of obtaining a transcript of the testimony, and the right of a defendant unable to pay the cost of an appeal to apply for permission to appeal as a poor person. Capital defense counsel shall also comply with section 510.7(a) of this Part.

(a) CPL 450.70(1) mandatory appeal. A timely appeal must be taken pursuant to CPL 460.10 (1). In addition, counsel for defendant must file one copy of the notice of appeal, with proof of service and filing, with the clerk of the Court of Appeals.

(b) Other capital appeals. Any other appeal in a case involving a sentence of death shall be taken by the timely service and filing of a notice of appeal pursuant to CPL 460.10(1). In addition, counsel for appellant must file one copy of the notice of appeal, with proof of service and filing, with the clerk of the Court of Appeals.

(a) Upon appeal from a judgment including a sentence of death (CPL 460.40 [1]). The taking of an appeal by a defendant directly to the Court of Appeals from a superior court judgment including a sentence of death stays the execution of such sentence until determination of the appeal.

(b) Initial CPL article 440 proceedings (CPL 460.40[3]). Upon motion to the superior court judge or justice who signed the warrant of execution, a defendant sentenced to death shall be granted a stay of execution of a death warrant issued pursuant to Correction Law article 22-B to allow the defendant an opportunity to prepare and timely file an initial motion in superior court pursuant to CPL 440.10 or 440.20. The order staying execution shall provide that the stay of execution shall continue until (1) the time for taking an appeal to the Court of Appeals from the superior court's denial of such CPL article 440 motion has expired, or (2) if an appeal is taken, until the Court of Appeals determines the appeal.

(c) Subsequent CPL article 440 proceedings (CPL 460.40[3]).

(1) In the event a defendant sentenced to death files a motion for post-conviction relief pursuant to CPL 440.10 or 440.20 subsequent to the final determination of an initial CPL article 440 motion, the superior court may grant a stay of execution of a death warrant issued pursuant to Correction Law article 22-B only for good cause shown.

(2) The People and a defendant sentenced to death shall have an appeal as of right directly to the Court of Appeals from a superior court order granting or denying such motion for a stay of execution. On such appeal, the court may affirm, reverse, or modify such order as the court deems appropriate.

(3) By the end of business on the date a notice of appeal from a superior court order granting or denying a motion for a stay of execution has been filed, the clerk of the superior court, and appellant or appellant's counsel, shall notify the clerk of the Court of Appeals by telephone of such filing. Telephone notice to the Court of Appeals does not relieve the clerk of the superior court of the duties imposed by section 510.6 of this Part.

(4) Upon the taking of an appeal from a superior court order granting or denying such a stay, the Court of Appeals shall forthwith issue a Capital Appeal Management Order establishing a schedule for perfecting the appeal. To the extent other provisions of this Part are inconsistent with a Capital Appeal Management Order so issued, the order shall supersede those provisions for purposes of the subject appeal only.

(a) Where not otherwise provided, the Court of Appeals may grant a stay on motion brought in accordance with section 510.12 of this Part, provided that the court's jurisdiction has been invoked by the service and filing of a notice of appeal or a motion pursuant to CPL 460.30 for an extension of time to take an appeal.

(b) Emergency motions for interim stay relief shall be brought on by order to show cause filed with the clerk of the Court of Appeals. Any time a party seeks interim stay relief, that party should contact the clerk of the court at (518) 455-7700.

(1) the duplicate notice of appeal;

(2) a chronological list of all proceedings below giving rise to this particular appeal, noting which transcripts have been, or must be, prepared; and

(3) a list of all exhibits introduced in the proceedings below giving rise to this particular appeal.

(a) Where sought, trial counsel shall move, pursuant to section 510.12 of this Part, for assignment of appellate counsel or other items of poor person relief within 10 days after the filing of the notice of appeal. The motion papers shall include an affidavit setting forth the information required by CPLR 1101(a). On an appeal in a case in which Judiciary Law § 35-b provides for the assignment of appellate counsel, trial counsel's affidavit shall also state whether counsel is requesting to be considered for assignment as counsel on the appeal.

(b) Where the appeal is taken from a judgment including a sentence of death pursuant to CPL 450.70 (1), assigned counsel may move at any time pursuant to section 510.12 of this Part for assignment of Associate Counsel for good cause shown.

(c) Assignment of counsel shall proceed in compliance with any applicable Court of Appeals directives on the matter.

(a) After receipt from the superior court of the Case History required by section 510.6 of this Part, the Court of Appeals shall enter and forward to counsel for the parties an Initial Capital Appeal Management Order or Orders:

(1) determining defendant's request, if any, for items of poor person relief,

(2) establishing final dates for transcription and settlement, if necessary, and

(3) establishing a deadline for filing the settled record on appeal in this court, and

(4) for purposes of case management, requiring appellant's counsel to file periodically with the clerk of the Court of Appeals a progress report concerning the capital appeal.

(b) Appellant's counsel shall file, and respondent's counsel may file, a Preliminary Appeal Statement in accordance with section 510.9 of this Part. Following either the filing of respondent's Preliminary Appeal Statement or the expiration of respondent's time to so file, the Court of Appeals shall enter and forward to counsel for the parties a Final Capital Appeal Management Order which shall:

(1) establish a briefing schedule for the appeal;

(2) state whether the appeal will proceed on the full reproduced record or on an appendix, as set forth in section 510.11 of this Part;

(3) for purposes of case management, require counsel to file periodically with the clerk of the Court of Appeals a progress report concerning the capital appeal; and

(4) establish a deadline by which all requests for amicus curiae relief must be noticed to be heard.

Capital appeals shall receive a calendar preference. In the clerk's discretion, a capital appeal management conference may be scheduled prior to, or any time following, issuance of the Initial Capital Appeal Management Order.

(c) For purposes of case management and public notice, appellant must file with the opening brief on appeal a separately bound Issue Identification Statement listing, in point-heading format, all issues raised on the appeal. The Court of Appeals may direct the parties to brief and argue specific issues on the appeal.

(a) For issue identification and case management purposes only, within 30 days after the filing of the record on appeal in the Court of Appeals, appellant's counsel shall file with the clerk of the Court of Appeals, with proof of service of one copy on respondent's counsel, two copies of a Preliminary Appeal Statement, which shall include:

(1) the title of the case;

(2) the court from which the appeal is taken;

(3) a copy of the judgment or order of the superior court appealed from;

(4) a copy of any other written order brought up for review;

(5) a copy of all written decisions of the superior court; and

(6) a preliminary, nonbinding statement of issues likely to be raised on appeal.

(b) Within 10 days after service of appellant's Preliminary Appeal Statement, respondent's counsel may file with the clerk of the Court of Appeals, with proof of service of one copy on appellant's counsel, two copies of a Preliminary Appeal Statement which sets forth any additional matters relevant to the appeal or any disagreement with appellant's Preliminary Appeal Statement.

(c) Where appellant's statement of issues pursuant to subdivision (a)(6) of this section includes an assertion that a statute, or a portion of a statute, is unconstitutional, notice must be given to the Attorney General pursuant to section 510.13 of this Part prior to filing the Preliminary Appeal Statement, and a certification of this notification shall be included in the Preliminary Appeal Statement.

(a) During the course of capital proceedings before the superior court, and at all times thereafter, the clerk of the superior court shall take all necessary steps to insure the accuracy and completeness of the record of the proceedings.

(b) The court reporter shall take, and keep electronically, minutes of all capital proceedings occurring in the superior court. Transcription shall proceed in compliance with any relevant superior court order and the Court of Appeals Capital Appeal Management Orders. Where a copy of the minutes of any proceedings in the superior court was ordered during the course of the superior court proceedings, defense counsel and the prosecutor shall preserve their respective copies of the transcript. Transcripts shall be settled pursuant to CPLR 5525(c) within such time limits and pursuant to such additional procedures as may be set by Court of Appeals order.

(c) Upon the filing of a notice of appeal, the superior court clerk shall expeditiously assemble, reproduce, and transmit to appellant the record of the proceedings. Appellant shall be responsible for the timely preparation and filing of the record on appeal in accordance with the Initial Capital Appeal Management Order issued by the Court of Appeals pursuant to section 510.8 (a) of this Part.

(d) The record on appeal shall comply with section 510.11(b) of this Part, and be stipulated to or settled on motion. The parties may stipulate to the correctness of the contents of the record on appeal using the process provided by CPLR 5525(c)(1). Where the parties are unable to agree and stipulate to the contents of the record on appeal, appellant shall move, on notice, to settle the record in the superior court from which the appeal is taken.

(e) Within the time period prescribed in the Initial Capital Appeal Management Order after the superior court clerk's transmission to appellant of the reproduced record of proceedings, appellant shall file with the clerk of the Court of Appeals either the parties' stipulation to the record on appeal or a copy of appellant's notice of motion to settle the record.

(f) The parties' failure to list in the stipulation to the record on appeal any transcript, exhibit, or other document that constituted a part of the underlying prosecution shall not preclude the Court of Appeals from considering such transcript, exhibit, or other document in determining the appeal.

(a) Record on Appeal. On an appeal in a case involving a sentence of death, appellant shall file with the clerk of the Court of Appeals 15 copies of the settled, reproduced record of the proceedings in the superior court, with proof of service on respondent of three copies of the settled, reproduced record.

(b) The settled, reproduced record shall contain the complete original file, including the transcribed stenographic minutes of all proceedings occurring in the superior court, such as proceedings on pretrial motions and hearings, opening and closing statements, jury voir dire examination, all trial testimony, all legal argument of counsel, including bench and chambers colloquies, the jury instructions, all communications to and from the jury after instructions, proceedings on sentencing, and post-trial motions and hearings. The record shall conform substantially with the requirements of CPLR 5526, except that the subject matter of each page of the record need not be stated at the top. The record shall also conform substantially with the requirements of section 510.1 of this Part, and shall contain in the following order so many of the following items as are relevant to the case:

(1) a cover which shall contain the title of the case on the upper portion and, on the lower portion, the names, addresses, and voice and facsimile telephone numbers of counsel for the parties, and the indictment number;

(2) the statement required by CPLR 5531;

(3) a table of contents which shall list and briefly describe each paper included in the record. The part of the table relating to the transcript of testimony shall separately list each witness and the page at which direct, cross, redirect and recross examinations begin. The part of the table relating to exhibits shall concisely indicate the nature and contents of each exhibit and the page in the record where it is reproduced and where it was admitted into evidence. The table shall also contain references to pages where a motion to dismiss the indictment or to direct or set aside a verdict, or where an oral decision of the court, appears;

(4) the notice of appeal, judgment or order appealed from, judgment roll, corrected transcript, relevant exhibits and any opinions or decisions in the case;

(5) a stipulation, or order settling the transcript; and

(6) a copy of either the stipulation described in section 510.10(d) of this Part or the superior court order settling the record.

(c) Confidential Material

(1) Documents and transcripts ordered sealed by the courts below shall be reproduced in separate volumes of the record on appeal. Each such volume shall be clearly identified on the cover as containing confidential material.

(2) The People shall file, separately from the record on appeal, one copy of all documents and transcripts concerning the nature or substance of any grand jury testimony or evidence, and any decision, result or other matter attending a grand jury proceeding which is required by CPL 190.25 (4)(a) to be kept secret. All such volumes shall be clearly identified on the cover as containing confidential grand jury material.

(d) Appendix. Except on appeals taken pursuant to CPL 450.70(1), the Court of Appeals sua sponte may order appellant, or appellant may seek permission pursuant to section 510.12 of this Part, to prosecute the appeal upon one copy of the settled, reproduced record and 15 copies of an appendix which conforms to the requirements of CPLR 5528 and 5529 and section 510.1 of this Part. The appendix shall be bound separately from the brief and shall include the following items:

(1) the notice of appeal;

(2) the statement required by CPLR 5531;

(3) the order or judgment of the superior court from which the appeal is taken;

(4) any other order sought to be reviewed;

(5) the written and oral decisions of the superior court, as relevant;

(6) findings of fact, as relevant;

(7) the indictment; and

(8) those portions of the testimony, affidavits, legal arguments, and written and photographic exhibits referenced in appellant's brief and reasonably expected to be referenced in respondent's brief, and all other portions that may be useful to the determination of the questions raised on the appeal.

The prior filing of a Preliminary Appeal Statement pursuant to section 510.9 of this Part does not satisfy the requirements of this section. Where appellant has filed an inadequate appendix, respondent may move to strike the appendix pursuant to section 510.12 of this Part or may submit a respondent's appendix containing additional parts of the record deemed necessary for the court to consider the questions involved.

(e) Briefs. Briefs shall conform to the requirements of section 510.1 of this Part. The cover of the brief shall set forth the title of the case. The upper right hand section shall contain a notation stating whether the case shall be argued or submitted. If the case is to be argued, the notation shall state the name of counsel who will argue and the amount of time granted for oral argument. The lower right hand section shall contain the name, address, and voice and facsimile telephone number of counsel filing the brief, and the date the brief was filed, and shall indicate whom counsel represents. Unless authorized by the clerk of the Court of Appeals, briefs shall not contain maps, photographs, or other addenda.

(1) Appellant shall file 15 copies of the appellant's brief and the Issue Identification Statement required by section 510.8(c) of this Part, with proof of service of three copies on respondent. The appellant's brief shall contain in the following order:

(i) a table of contents including the titles of the points urged in the brief;

(ii) a list of all authorities cited in the brief;

(iii) a concise statement of the questions involved without names, dates, or particulars. Each question shall be numbered, set forth separately, and followed immediately by the answer, if any, of the court from which the appeal is taken;

(iv) a concise statement of the nature of the case and of the facts which should be known to determine the questions involved, with supporting references to pages in the record or the appendix, including, if such be the case, a statement that proceedings on the judgment or order appealed from have been stayed pending a determination of the appeal; and

(v) the appellant's argument, which shall be divided into points by appropriate headings distinctively printed.

(2) Respondent shall file 15 copies of the respondent's brief, with proof of service of three copies on appellant. The respondent's brief shall contain, in the following order:

(i) a table of contents including the titles of the points urged in the brief;

(ii) a list of all authorities cited in the brief;

(iii) a counter statement of the questions involved or of the nature and facts of the case, if respondent disagrees with the statement of appellant; and

(iv) the argument for respondent, which shall be divided into points by appropriate headings distinctively printed.

(3) Appellant shall file 15 copies of the appellant's reply brief, with proof of service of three copies on respondent. The appellant's reply brief shall contain, in the following order:

(i) a table of contents;

(ii) a list of all authorities cited in the brief; and

(iii) the reply for appellant, without repetition of the arguments contained in the main brief, which shall be divided into points by appropriate headings distinctively printed.

(a) Unless otherwise directed by a judge of the Court of Appeals by order to show cause, the following procedures shall apply to motions concerning capital appeals. A motion addressed to the Court of Appeals may be made on 8 days' notice (personal service), 9 days' notice (overnight delivery service) or 13 days' notice (service by mail) (see CPLR 2103). Motions are returnable at Court of Appeals Hall, 20 Eagle Street, Albany, New York 12207-1095, every Monday, whether or not the court is in session. Whenever a Monday is a State holiday, motions are returnable on the next day of that week that is not a State holiday. All motions shall be submitted without oral argument. Unless otherwise permitted by the court or the clerk, the papers in support of a motion must be filed at Court of Appeals Hall no later than noon on the Friday preceding the return date. All responding papers must be served and filed at Court of Appeals Hall on or before the return date of the motion. Proof of service on each party must be filed with any papers submitted on a motion. Filings by facsimile transmission will not be accepted without prior authorization of the clerk. No adjournments are possible other than in those narrow circumstances provided by CPLR 321(c).

(b) Reply papers are not permitted by the court's motion practice. Requests for permission to file papers after the motion return date are governed by section 510.14 of this Part.

(c) Motion for amicus curiae relief. A brief amicus curiae may be filed only by leave of the Court of Appeals granted on motion, or upon the court's request. Motions for amicus curiae relief must be noticed to be heard no later than the deadline set forth in the Final Capital Appeal Management Order. Movant must file one copy of the motion and 15 copies of the proposed brief, with proof of service of three copies on each party. Motions for amicus curiae relief must demonstrate to the court's satisfaction at least one of the following:

(1) that the parties are not capable of a full and adequate presentation and that movants could remedy this deficiency;

(2) that movants would invite the court's attention to law or arguments which might otherwise escape its consideration; or

(3) that amicus curiae briefs would otherwise be of special assistance to the court.

Proposed briefs amicus curiae shall conform to the requirements set forth in section 510.11(e) of this Part.

(d) Motion for reargument. A motion for reargument of an appeal shall be made on 10 copies of a brief or memorandum, with proof of service of three copies. A motion to reargue a motion may be made on one copy of a brief or memorandum with proof of service of one copy. A motion to reargue an appeal or motion shall state briefly the grounds upon which reargument is sought and the points claimed to have been overlooked or misapprehended by the court, with proper reference to the particular portions of the record and to the authorities relied upon. A motion to reargue may not be based on the assertion for the first time of new points except for extraordinary and compelling reasons. Unless otherwise permitted by the court, the notice of motion shall be served not later than 30 days after the appeal or motion has been decided.

(e) Other motions. Motions other than those seeking amicus curiae relief or reargument may be made on a single set of the moving papers, with proof of service of one copy.

(f) Motion papers which do not conform to the requirements of this Part may be rejected by the clerk.

§ 510.13 Notice to the Attorney General.

Unless such notice has already been given pursuant to section 510.9 (c) of this Part, where a party or an amicus asserts in its brief on appeal that a statute, or a portion of a statute, is unconstitutional, notice shall be given to the Attorney General in writing at the time the party or amicus files its brief, and a certification of the notification shall be included in the brief. The notification and a copy of the brief shall be sent to the Solicitor General, Department of Law, The Capitol, Albany, New York 12224-0341.

(a) Upon a determination of the Court of Appeals affirming a judgment that includes a sentence of death, the clerk of the Court of Appeals shall notify the capital defender office of the determination by the end of business on the day such determination is handed down.

(b) Notice to the capital defender office required pursuant to subdivision (a) of this section shall consist of telephone, facsimile, electronic mail or other prompt electronic means of communication, which shall be followed by first class mail notification within two business days after the affirmance.

(c) The clerk of the Court of Appeals shall retain a written record of the electronic and written notice given pursuant to subdivision (b) of this section.

(a) In each criminal action in which the defendant has been indicted for commission of an offense defined in section 125.27 of the Penal Law, except those in which the indictment is dismissed or the defendant is acquitted, the clerk of the superior court, within 45 days after the disposition of the action in such court, shall prepare and send to the Court of Appeals a Capital Case Data Report in the form prescribed by the Court of Appeals. Data reports shall be prepared by the clerk of the superior court by reviewing the record and upon consultation with the prosecutor and counsel for the defendant. Such data reports shall not constitute a part of the record in the underlying criminal action. The clerk of the superior court shall retain, in a confidential file kept separate from the record in the underlying criminal action, a copy of each such data report sent to the Court of Appeals, and may disclose a data report, or any part thereof, only upon order of the Court of Appeals for exceptional cause shown.

(b) All Capital Case Data Reports received by the Court of Appeals shall be compiled into a uniform Capital Case Data Report, which may consist of a computer data base containing the information in each Capital Case Data Report. Upon request, the uniform Capital Case Data Report shall be made available to the parties on appeal to the Court of Appeals in cases where a sentence of death has been imposed.

(c) If the conviction or sentence in such criminal action is subsequently reversed or modified, the Capital Case Data Report shall be notated to reflect the reversal or modification. If an intermediate appellate court reverses or modifies the conviction or sentence, that court shall forward a copy of its remittitur to the Court of Appeals within 10 days after entry. If a new disposition in the action ensues in the superior court, the superior court clerk shall prepare a new Capital Case Data Report. Upon completion, the superior court clerk shall send the new Capital Case Data Report to the clerk of the Court of Appeals with a notice that the new report should be substituted in the data base for the previous report.