Can you file a 440 motion before your appeal?

Appeals cover things that are on the Appellate record while a 440 covers things not on the record so you can do both at the same time. However, you should consult with a criminal defense lawyer before proceeding.

Not sure what you mean by "motion to appeal." Has the brief been filed or not? If so, have you been waiting a year for the DA's brief? That seems unlikely. Assuming the brief has not yet been filed, there is generally no deadline for criminal appeals in the Second Department which, based on your Peekskill posting, is where I assume you are. So you can "put it off" until the court orders you to file. It is possible to consolidate a 440 appeal with a direct appeal, but only after both have been perfected, and only by permission of the court. Keep in mind that, if the 440 motion is denied without a hearing, appeal is only by permission of the Appellate Division, which is not always granted. As you see, multiple steps must be taken before you get to the batter's box. And always remember that a home run in criminal appeals is very rare--less than 5% chance. Good luck.

Did you mean notice to appeal? In any case, you can file a 440 motion at any time and additional 440s if newly discovered evidence point to new claims. Yes, you can file the 440 before (or after) the appeal and it will not hurt your appeal because both cover different types of evidence. The 440 covers evidence that occurs "off the record," meaning not at a trial. This would cover, for example, when a prosecutor did not turn over exculpatory evidence before the trial. Appeals cover all evidence that occurs "on the record," meaning any evidence that occurred during the trial from jury selection, testimony, closing arguments, and the judge's instruction. You don't consolidate 440s and appeals for the reason described above.