N.Y. Comp. Codes R. & Regs. tit. 22 § 606.5

Current through Register Vol. 46, No. 16, April 17, 2024

Section 606.5 - Duties of counsel with respect to representation of defendants in criminal actions

(a) Duties of assigned or retained counsel.

(1) It shall be the duty of counsel assigned to or retained for the defense of a defendant in a criminal action or proceeding to represent defendant in the trial court until the action or proceeding has been terminated in that court, and to comply with the provisions of paragraph (b)(1) or (d)(2) of this section, after which the duties of assigned counsel shall be ended.

(2) It shall be the duty of counsel assigned to prosecute or defend an appeal on behalf of an indigent defendant to accept said assignment and to prosecute the appeal until entry of the order of the appellate court terminating the appeal, and to comply with the provisions of paragraph (b)(2) or (d)(2) of this section, after which the duties of assigned counsel shall be ended.

(b) Notification of right to appeal or to apply for a certificate granting leave to appeal. Obligation to file profile statement with notice of appeal.

(1) After conviction and sentence. Where there has been a conviction after trial or otherwise, or where there has been an adverse decision upon an application for a writ of habeas corpus, upon a motion to vacate a judgment made pursuant to section 440.10 of the Criminal Procedure Law, upon a motion to set aside a sentence made pursuant to section 440.20 of the Criminal Procedure Law, or where there has been a determination revoking parole, it shall be the duty of counsel, retained or assigned, immediately after the pronouncement of sentence or service of a copy of the order disposing of the application for a writ of habeas corpus, of a motion to vacate a judgment made pursuant to section 440.10 of the Criminal Procedure Law, of a motion to set aside a sentence made pursuant to section 440.20 of the Criminal Procedure Law, or of a notice of the determination revoking parole, to advise the defendant or parolee in writing of his right to appeal or to apply for a certificate granting leave to appeal pursuant to subdivision 4 of section 460.10 of the Criminal Procedure Law, the time limitations involved, in the manner of instituting an appeal and of obtaining a transcript of the testimony, and of the right of a person who has an absolute right to appeal or has received a certificate granting leave to appeal and is unable to pay the cost of an appeal to apply for leave to appeal as a poor person. It shall also be the duty of such counsel to ascertain whether defendant or parolee wishes to appeal or to apply for a certificate granting leave to appeal, and, if so, to serve and file the necessary notice of appeal from a judgment of conviction or determination revoking parole or to apply for a certificate granting leave to appeal from the denial of a motion made pursuant to section 440.10 or section 440.20 of the Criminal Procedure Law and, if granted, to file the necessary certificate and notice of appeal within the time limitations provided for in subdivision 4 of section 460.10 of the Criminal Procedure Law. Attached to the notices of appeal, counsel shall file two copies of a profile statement which sets forth:

(i) title of the action and indictment number;

(ii) county and court from which the appeal is taken;

(iii) full names of the defendant and any co-defendants;

(iv) name(s), address(es) and telephone number(s) of defense counsel;

(v) charges upon which defendant stands convicted and date judgment was entered;

(vi) pretrial hearings and dates held;

(vii) trial dates and/or plea dates; and

(viii) whether court ordered daily copy of hearing or trial transcripts was received and the date(s) the transcripts were returned.

(2) After determination adverse to defendant. Immediately after entry of an order affirming a judgment of conviction or and order modifying or reversing an order or sentence appealed by the people pursuant to section 450.20 of the Criminal Procedure Law or an order denying an application for a writ of habeas corpus, a motion to vacate a judgment made pursuant to section 440.10 of the Criminal Procedure Law, or a motion to set aside a sentence made pursuant to section 440.20 of the Criminal Procedure Law, it shall be the duty of counsel, retained or assigned, to advise defendant of his right to apply for permission to appeal and of the additional right of a person who is unable to pay the cost of a further appeal (in the event permission shall have been granted) to apply for leave to prosecute such appeal as a poor person. It shall also be the duty of such counsel to ascertain whether defendant wishes to apply for permission to appeal to the Court of Appeals, and, if so, counsel shall make a timely application therefor. If permission to appeal is granted, and poor person's relief and the assignment of counsel are necessary, counsel shall make timely application for such relief. In the case of an order affirming a judgment dismissing a writ of habeas corpus, such counsel shall advise the relator of his or her right to appeal where there is a dissent by at least two justices on a question of law, or of the right to apply for permission to appeal where the determination is unanimous or there is a dissent by fewer than two justices. In the case of a parolee, his counsel shall advise the parolee, after notice of an adverse determination by the Board of Parole of an appeal from a determination revoking parole, of his right to commence a proceeding pursuant to article 78 of the Civil Practice Law and Rules and of the time limitation applicable thereto.

(c) Notification to defendants who appear without counsel.

(1) After conviction or denial of a motion to vacate a judgment made pursuant to section 440.10 of the Criminal Procedure Law, or of a motion to set aside a sentence made pursuant to section 440.20 of the Criminal Procedure Law. If a defendant has appeared pro se, the trial court shall advise a defendant of his right to appeal from a judgment of conviction, or of his right to apply for a certificate granting leave to appeal from an order denying a motion to vacate a judgment made pursuant to section 440.10 of the Criminal Procedure Law, or of a motion to set aside a sentence made pursuant to section 440.20 of the Criminal Procedure Law. It shall also advise a defendant of the right of a person unable to pay the cost of an appeal to apply for leave to appeal as a poor person. If the defendant so requests, the clerk of the court shall prepare and file and serve forthwith a notice of appeal on behalf of the defendant from a judgment of conviction. If the defendant so requests in writing within 30 days after service upon him of a copy of an order denying a motion to vacate a judgment made pursuant to section 440.10 of the Criminal Procedure Law, or of a motion to set aside a sentence made pursuant to section 440.20 of the Criminal Procedure Law, and no previous application for a certificate granting leave to appeal has been made, the clerk of the court shall serve a copy of such request upon the district attorney and shall transmit the request and the original record of the proceedings sought to be reviewed to the appellate court. Upon determination of the application the original record of proceedings shall be returned to the trial court together with a certified copy of the order entered upon the application; a certified copy of the order shall also be sent to the defendant at his address shown in the application.

(2) After determination adverse to defendant.

(i) If on an appeal from a judgment of conviction after trial or otherwise, or on an appeal from an order or sentence appealed by the people pursuant to section 450.20 of the Criminal Procedure Law, or from an order denying a motion to vacate a judgment made pursuant to section 440.10 of the Criminal Procedure Law, or of a motion to set aside a sentence made pursuant to section 440.20 of the Criminal Procedure Law, a defendant has appeared pro se, and the judgment, order or sentence is adverse to the defendant the copy of the order of affirmance, with notice of entry, which is served on the defendant shall have annexed or appended thereto the following notice:

NOTICE AS TO FURTHER APPEAL

Pursuant to section 460.20 of the Criminal Procedure Law, defendant has the right to apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that court by submitting such application to the clerk of that court, or to a justice of the Appellate Division of the Supreme Court of this department on reasonable notice to the respondent within 30 days after service of a copy of the order or affirmance with notice of entry.

Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.

(ii) Where an order determining an appeal from a judgment that determines either a writ of habeas corpus or a petition in an article 78 proceeding affecting a criminal case is adverse to a relator or petitioner appearing pro se, the following notice shall be annexed or appended to the copy of the order served, with notice of entry, upon such relator or petitioner:

NOTICE AS TO FURTHER APPEAL

If the determination by the Appellate Division is unanimous or there is a dissent by fewer than two justices, an appeal may be taken to the Court of Appeals only pursuant to section 5602 of the Civil Practice Law and Rules by permission of the Appellate Division granted before application to the Court of Appeals or by permission of the Court of Appeals upon refusal of the Appellate Division to grant permission, or by direct application to the Court of Appeals.

An application for permission to appeal must be made within 30 days after service of a copy of the order of affirmance with notice of entry.

If the determination by the Appellate Division is not unanimous and at least two justices dissent on a question of law, relator or petitioner may take an appeal to the Court of Appeals as a matter of right pursuant to section 5601(a) of the Civil Practice Law and Rules by serving on the adverse party a notice of appeal within 30 days after service of a copy of the order appealed from, with notice of entry, and filing the notice of appeal in the office where the judgment or order of the original instance is entered.

(d) Notification to defendants of people's appeals.

(1) It shall be the duty of trial counsel, upon service of an order appealable by the people pursuant to Criminal Procedure Law article 450 to forthwith notify defendant in writing that the people have the right to take an appeal, the consequences of the people's appeal and the defendant's rights, including the right to retain appellate counsel or, if indigent, to apply for leave to appear as a poor person.

(2) It shall be the duty of appellate counsel upon service of a notice of appeal or an order of appointment to notify the client in writing that the people have taken an appeal from an order of the trial court and the consequences of the appeal.

(3) In the event no appellate counsel has appeared on behalf of the defendant, assigned trial counsel, upon receipt of the people's brief, shall make diligent efforts to locate the defendant and notify the defendant, in writing, that the people have filed a brief, the consequences of the people's appeal and the defendant's rights, including the right to retain appellate counsel, or if indigent, to apply for leave to appeal as a poor person.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 606.5