N.Y. Comp. Codes R. & Regs. tit. 22 § 671.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 671.4 - Additional duties of defendant's counsel in the Appellate Division or other intermediate appellate court

(a) Immediately after entry of the order of the Appellate Division or other intermediate appellate court affirming the judgment of conviction or sentence or the order denying a motion made pursuant to C PL 440.10 or 440.20 or the order or judgment denying or dismissing a habeas corpus or CPLR article 78 application or proceeding, it shall be the duty of the counsel for the defendant, to give, either by mail or personally, written notice to his client advising him:

(1) of his right to make application for permission to take a further appeal or for a certificate granting leave to appeal to the Court of Appeals; and

(2) in the event such permission is granted or such certificate is issued, of his additional right, upon proof of his financial inability to retain counsel and to pay the costs and expenses of such further appeal, to make a concurrent application to the Court of Appeals for the assignment of counsel and for leave to prosecute such further appeal as a poor person and to dispense with printing. In such notice counsel shall also request the written instructions of his client. If the client thereafter gives to counsel timely written notice of his desire to make either or both of such applications, counsel shall proceed promptly to do so.

(b) In a habeas corpus or CPLR article 78 proceeding, however, if any two judges shall have dissented from the affirmance and if the dissent is on a stated question of law in relator's or petitioner's favor, counsel in his said written notice shall advise his client of his absolute right, without permission, to take a further appeal to the Court of Appeals. Upon receiving from the client written notice of his desire to prosecute such appeal, counsel shall file and serve promptly a formal notice of appeal accordingly. Unless counsel shall have been retained to prosecute the appeal, the notice of appeal shall contain the additional statement that it is being served and filed on appellant's behalf pursuant to this rule and that it shall not be deemed counsel's appearance as appellant's attorney upon the appeal.

(c) In the event the People are the appellant and they elect to serve a copy of their notice of appeal upon the defendant pursuant to their authority to do so under C PL 460.10, subdivision 5(c), they shall also serve a copy thereof upon the attorney who appeared for the defendant in the intermediate court.

(d) If, pursuant to said C PL 460.10, subdivision 5(c), the People as appellant elect in the first instance to serve a copy of their notice of appeal on the attorney who appeared for the defendant in the intermediate appellate court, or, if they serve the attorney as required in subdivision (c) of this section, it shall be the duty of counsel for the defendant to give, either by mail or personally, written notice to his client confirming the fact that such appeal has been taken by the People. Such notice shall also advise him of his right (1) to retain counsel to represent him as respondent on the appeal, or (2) to respond to the appeal, pro se, or (3) upon proof of his financial inability to retain counsel and to pay the costs and expenses of responding to such appeal, to apply to the Court of Appeals for the assignment of counsel, for leave to respond to the appeal as a poor person and to dispense with printing. In such notice counsel shall also request the written instructions of his client. If the client thereafter gives counsel timely written notice of his desire to make such application, counsel shall proceed promptly to do so.

(e) In the event the appeal by the People results in an order of an intermediate appellate court adverse or partially adverse to the defendant-respondent, it shall be the duty of counsel to comply with the written notice provisions of subdivision (a) of this section applicable to an affirmance on an appeal by the defendant except that the term "further appeal" in paragraphs (1) and (2) thereof shall be deemed to read "appeal."

N.Y. Comp. Codes R. & Regs. Tit. 22 § 671.4