N.Y. Comp. Codes R. & Regs. tit. 22 § 671.3

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

Section 671.3 - Additional duties of defendant's counsel in the trial court

(a) Upon conviction in the trial court or upon denial in that court of a motion made pursuant to C PL 440.10 or 440.20 or the denial or dismissal of an application in a habeas corpus or CPLR article 78 proceeding, it shall be the duty of the counsel for the defendant, immediately after the pronouncement of sentence or after service upon him of a copy of the order denying the motion or of the order or judgment denying or dismissing the application, to give, either by mail or personally, written notice to his client advising him of his right to appeal or to make application for permission to appeal or for a certificate granting leave to appeal pursuant to C PL 460.10 (subdivision 4); and requesting his written instructions as to whether he desires to take an appeal or make such application. Thereafter, if the client gives to counsel timely written notice of his desire to appeal or to make such application, counsel shall promptly serve and file the necessary formal notice of appeal or application to the appropriate appellate court. If the application be granted, then, within the time limitations and in the manner provided in C PL 460.10 (subdivision 4), counsel shall also file the order or certificate granting leave to appeal together with a written notice of appeal. Unless counsel shall have been retained to prosecute the appeal, the notice of appeal in every case 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 to be counsel's appearance as appellant's attorney upon the appeal.

(b) In counsel's written notice to his client advising him of the right to appeal or to make application for permission to appeal or for a certificate granting leave to appeal, counsel shall also set forth:

(1) the applicable time limitations with respect to the making of the application for permission to appeal or for a certificate granting leave to appeal and the prosecution of the appeal;

(2) the manner of instituting the appeal and, if a trial or hearing was held and stenographic minutes taken, the manner of obtaining a typewritten transcript of such minutes; and

(3) the appellant's right, upon proof of his financial inability to retain counsel and to pay the costs and expenses of the appeal, to make application to the appellate court for the following relief: for the assignment of counsel to prosecute the appeal; for leave to prosecute the appeal as a poor person and to dispense with printing; and if stenographic minutes were taken, for a direction to the clerk and the stenographer of the trial court that a typewritten transcript of such minutes be furnished without charge to the appellant's assigned counsel or, if appellant prosecutes the appeal pro se, to appellant.

(4) In such notice counsel shall also request the written instructions of his client, and if the client thereafter gives counsel timely written notice of his desire to make application for permission to appeal or for a certificate granting leave to appeal or to apply for the relief provided in paragraph (3) of this subdivision, or to make any one or all of these applications, counsel shall proceed promptly to do so.

(c) Counsel shall also advise the client that in those cases where permission to appeal or where certificates granting leave to appeal are required, applications for the foregoing relief will be considered only if, as and when such permission is granted or such certificate is issued.

(d) 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 1(c), they shall also serve a copy thereof upon the attorney who last appeared for the defendant in the court in which the order or sentence being appealed was entered.

(e) If, pursuant to C PL 460.10, subdivision 1(c), the People as appellant elect to serve a copy of their notice of appeal in the first instance upon the attorney who last appeared for the defendant in the court in which the order or sentence being appealed was entered, or if they serve the attorney as required in subdivision (d) of this section, it shall be the duty of the attorney so served 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 his client 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 cost and expenses of responding to the appeal, to make application to the appellate court for the following relief: for the assignment of counsel to represent him as the respondent on the appeal; for leave to respond to the appeal as a poor person and to dispense with printing; and, if stenographic minutes were taken, for a direction to the clerk and the stenographer of the trial court that a typewritten transcript of such minutes be furnished without charge to the respondent's assigned counsel or, if the defendant appears as respondent pro se, to respondent. In such notice counsel shall also request the written instructions of his client, and, if the client thereafter gives counsel timely written notice of his desire to make such application, counsel shall proceed promptly to do so.

(f) In the event, however, the attorney was the defendant's assigned counsel in the court in which the order or sentence being appealed was entered, such assignment shall remain in effect and counsel shall continue to represent the defendant as the respondent on the appeal until entry of the order determining the appeal and until counsel shall have performed any additional applicable duties imposed upon him by these rules, or until counsel shall have been otherwise relieved of his assignment. In the event the assignment remains in effect as herein provided, the written notice to the client as provided in subdivision (e) of this section may be dispensed with, except to the extent of confirming the fact that such appeal has been taken by the People.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 671.3