Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 7, #10

Issue: Advising the Defendant of Right to Appeal

The notice of appeal in a criminal case is a simple document: one page, pretty much fill-in-the-blanks, doesn’t have to be signed, just file and serve it. It is of significant importance, though, as the timely filing of the notice of appeal preserves the defendant’s right to appeal.

Written notice of appeal right

It is important enough that the rules of each Appellate Division palce the responsibility on defense counsel to inform the defendant, in writing, of the right to appeal. 22 NYCRR §§ 606.5(b), 671.3, 821.2(a), 1022.11(a). Many courts have a form that can be provided to the defendant at time of sentencing.

The failure of defense counsel to so inform the defendant in writing has repeatedly been termed " improper conduct" by the Fourth Department. People v Stewart, 178 AD2d 1030, 578 NYS2d 781 (4th Dept 1991). Neglecting to do so may be grounds for disciplinary action as well.

The obligation to inform the defendant in writing applies to all levels of offenses: violations and traffic infractions, misdemeanors, and felonies.

The attorney must provide the defendant with written notification with denial of a writ of habeas corpus, and CPL article 440 motions. (In the latter situation, it is not a notice of appeal, but rather an application for leave to appeal).

Additionally, the attorney is required under the rules to inform the defendant of the right to apply for permission to appeal as a poor person.

The duty of notifying, and of filing, applies regardless of whether the attorney is assigned or retained.

Guilty pleas as well as trials

The obligation also applies to guilty pleas as well as convictions after trial. It also applies where the defendant has agreed to waive the right to appeal.

It is a serious mistake to assume that a purported waiver of the right to appeal is an actual waiver. While it has been observed that a guilty plea should signal be the end of litigation, not the beginning, People v Seaberg, 74 NY2d 1, 543 NYS2d 968 (1989), there are many cases where a defendant’s supposed agreement to waive appeal has been found not to have been knowing, intelligent and voluntary. Certain categories of claims may have been waived by a defendant who pleads guilty, but not necessarily all. People v Callahan, 80 NY2d 273, 590 NYS2d 46 (1992).

Where there is any doubt, the notice of appeal should be timely filed and served.

Service and filing of notice of appeal

One copy of a notice of appeal is to be served on the District Attorney’s Office. It can be done personally or by mail. Two copies of the notice of appeal are to be filed with the court clerk. Which court clerk? The trial court – that is, the court from which the appeal is being taken. Why two copies? That court clerk has the responsibility of transmitting one copy to the court appealed to.

With an appeal from Supreme Court or County Court to the Appellate Division, the court clerk is the county clerk. Two copies of the notice of appeal are filed there.

With an appeal from a local court to County Court, according to court rules, one copy is to be filed with the county clerk as well. 22 NYCRR 200.33.

Getting the notice of appeal time stamped is a good idea, but additionally, it is worthwhile for defense counsel to prepare an affidavit of service as well, filing it with the court clerk as well as perhaps sending a copy of both notice of appeal and affidavit of service to the defendant.

Timing of service

The notice of appeal is to be filed and served within 30 days of sentencing. CPL 460.10(1)(a). If not done timely, a defendant may seek an extension of time, but this requires a motion, which may be opposed by the prosecution, and may be denied by the judge. CPL 460.30. If granted, thereafter the belated notice of appeal must be filed within 30 days. CPL 460.30(1). See also, 22 NYCRR § 1000.13(1) (Fourth Department).


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