§ 460.40 Effect of taking of appeal upon judgment or order of courts

below; when stayed.

1. The taking of an appeal by the defendant directly to the court of
appeals, pursuant to subdivision one of section 450.70, from a superior
court judgment including a sentence of death stays the execution of such
sentence. Except as provided in subdivision two of this section, in no
other case does the taking of an appeal, by either party, in and of
itself stay the execution of any judgment, sentence or order of either a
criminal court or an intermediate appellate court.

2. The taking of an appeal by the people to an intermediate appellate
court pursuant to subdivision one-a of section 450.20, from an order
reducing a count or counts of an indictment or dismissing an indictment
and directing the filing of a prosecutor's information, stays the effect
of such order. In addition, the taking of an appeal by the people to an
intermediate appellate court pursuant to subdivision one of section
450.20, from an order dismissing a count or counts of an indictment
charging murder in the first degree, stays the effect of such order.

3. Within six months of the effective date of this subdivision, the
court of appeals shall adopt rules to ensure that a defendant is granted
a stay of the execution of any death warrant issued pursuant to article
twenty-two-B of the correction law to allow the defendant an opportunity
to prepare and timely file an initial motion pursuant to section 440.10
or 440.20 seeking to set aside a sentence of death or vacate a judgment
including a sentence of death and to allow the motion and any appeal
from the denial thereof to be timely determined. The rules shall provide
that in the event a defendant seeks to file any subsequent motion with
respect to the judgment or sentence following a final determination of
the defendant's initial motion pursuant to section 440.10 or 440.20, a
motion for a stay of the execution of the death warrant may only be
granted for good cause shown. The people and the defendant shall have a
right to appeal to the court of appeals from orders granting or denying
such stay motions and any rules adopted pursuant to this subdivision
shall provide that the court of appeals may affirm such orders, reverse
them or modify them upon such terms as the court deems appropriate and
shall provide for the expeditious perfection and determination of such
appeals. Prior to adoption of the rules, the court of appeals shall
issue proposed rules and receive written comments thereon from
interested parties.