§ 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.