How do I receive assignments to represent individuals on appeal?
Attorneys interested in accepting assignments on appeal to the Fourth Department must attend a mandatory training seminar to become eligible to receive assignments. The Court offers an annual training seminar for criminal appeals, which also includes habeas corpus and SORA appeals, and an annual training seminar for Family Court appeals. Attorneys may attend either or both seminars. The full-day seminars are generally held on a Saturday and provide CLE credit for attorneys.
Assignments by the Court are made in consultation with the assigned counsel administrator for the county from which the appeal was taken. On each appeal, the Court will contact the county administrator to request the name of an eligible attorney willing and able to accept assignment on that appeal. The Court retains authority to make the final determination as to the assignment of counsel on each appeal.
How long do I have to perfect a criminal assigned appeal?
Unless a specific deadline date is given, an assignment order will direct that an appeal from a judgment of conviction be perfected within 120 days of the date of filing of transcripts with the County Clerk (see 22 NYCRR 1000.2 [c] ; 1021.1 [a] ).
A specific deadline may be set forth in the assignment order if transcripts were filed prior to the time that counsel is assigned; if the appeal is from an order entered in a SORA or habeas corpus proceeding, which is subject to the Court's nine month abandonment and dismissal rule (22 NYCRR 1000.12 [b]); if a conditional dismissal date was set by the Court in a prior order; or if the Court granted an appeal de novo on a coram nobis motion.
It is the responsibility of assigned counsel to note and diary the due date.
How long do I have to perfect a Family Court assigned appeal?
Unless a specific deadline date is given, an assignment order will direct that the appeal be perfected within 60 days of the date of the filing of the transcripts with the Family Court Clerk (see Family Ct Act § 1121 ; 22 NYCRR 1000.2 [c] ).
A specific deadline may be set forth in the assignment order if transcripts were filed prior to the time that counsel is assigned; if a conditional dismissal date was set by the Court in a prior order; or if the Court granted an appeal de novo on a coram nobis motion.
It is the responsibility of assigned counsel to note and diary the due date.
How do I request an extension of time to perfect an assigned appeal?
Assigned counsel may seek an extension of time to perfect an appeal for good cause shown, in writing, prior to the expiration of the due date, on notice to all parties.
Generally, an extension may be requested informally by letter application unless the appeal is subject to the nine month abandonment and dismissal rule (22 NYCRR 1000.12 [b]), there is a prior conditional dismissal order in effect, or the Court has otherwise directed that an extension request be made by formal motion, in compliance with the rules of the Court (see 22 NYCRR 1000.13).
The letter application or motion must set forth sufficient facts to demonstrate good cause for the delay and an intent to perfect within a reasonable time; must be received by the Court prior to the original deadline date; must include the full caption of the case with the Appellate Division Docket Number; must reflect the fact that copies of the letter have been sent to all interested parties; and must set forth, with specificity, the work already done on the appeal and the specific work yet to be completed.
Extension requests on SORA or habeas corpus appeals must always be made by formal motion to the Court.Motion to Extend Time to Perfect Appeal - Judgment of Conviction
Motion to Extend Time to Perfect Appeal - Habeas Corpus Order
Motion to Extend time to Perfect Appeal - SORA Order
How long of an extension can I request?
Extensions will not be granted for longer than a 60 day period of time on criminal appeals or 30 days on Family Court appeals and will not be granted absent a sufficient showing of facts demonstrating a reasonable excuse for the delay in perfecting the appeal and an intent to perfect within a reasonable time.
What if there are no non-frivolous issues that I can raise on a criminal appeal?
If there are no non-frivolous issues that can be raised on a criminal appeal, assigned counsel may make a motion to this Court, after conferring with defendant and trial counsel, to be relieved of the assignment by means of a Crawford motion (see People v Crawford, 71 AD2d 38; 22 NYCRR 1000.13 [q], 1022.11 [d]).
Such motion must be made on notice to the People and upon the submission of an affidavit and a brief in which counsel states all points that may arguably provide a basis for appeal.
The brief and motion must be served upon the defendant, at his or her last known address, at least 30 days before the specified return date of the motion, and the motion papers filed with the Court must include proof of such service. In addition, counsel must also file with this Court: (1) the papers that would constitute the record on appeal including the appendix, transcripts and exhibits and (2) a copy of a letter to defendant advising that he or she may elect to file either a pro se response to the motion and/or a pro se supplemental brief.
Is my client entitled to his or her own copy of the trial transcripts?
Where counsel has been assigned by the Court, the transcript prepared at taxpayer expense must be provided to counsel to perfect the appeal. Assigned counsel is not required to provide an additional copy to his or her client. In a criminal case, a defendant may purchase his or her own copy of the transcript from the county clerk's office, at a fixed rate, as a public document (see CPLR § 8019 [f]). A defendant in a criminal case may also request a free copy of the transcript from the Court, after the filing of counsel's brief, in order to prepare his or her own pro se supplemental brief.
What if my client wants to withdraw or discontinue the appeal?
If the appeal has not yet been perfected by the filing of records and briefs, assigned counsel should prepare a written Consent to Withdraw Appeal form for signature by appellant and assigned counsel.
If the appeal has been perfected, assigned counsel should prepare a written Stipulation of Discontinuance form for signature by appellant, assigned counsel, and opposing counsel or parties (including the Attorney for the Child, if any, in a Family Court appeal).
The Court must be promptly notified of the withdrawal or discontinuance of an appeal (see 22 NYCRR 1000.18 [c]).
What are my duties upon receipt of the Court's decision-order?
Upon receipt of the Court's decision-order, counsel shall notify the client in writing of the Court's decision.
Upon entry of an order affirming a judgment of conviction or order denying an application for a writ of habeas corpus or a motion under section 440.10 or 440.20 of the Criminal Procedure Law, assigned counsel is required to “advise the defendant in writing of his right to apply for permission to appeal to the Court of Appeals” and, if permission is granted, “to apply for leave to appeal as a poor person” (22 NYCRR 1022.11 [b]). Counsel is also required “to ascertain whether defendant wishes to apply for permission to appeal, and if so, [shall] make a timely application” for such relief (id.).
In a habeas corpus proceeding, where the order of this Court is appealable to the Court of Appeals pursuant to CPLR 5601, assigned counsel shall advise the relator of his absolute right to appeal without permission (22 NYCRR 1022.11 [b]).
In an appeal from a Family Court proceeding, the assignment of counsel is continued, by statute, after the entry of the order of this Court for the purpose of filing and serving a motion for leave to appeal to the Court of Appeals (see Family Ct Act §§ 1118, 1120 [a]). Upon such filing, counsel may be relieved of his or her representation by application made either to this Court or to the Court of Appeals (see Family Ct Act § 1120 [a]).
What are my duties if the Court's decision-order is favorable to my client in a criminal case?
To enable those agencies, when necessary, to update their records, IF the decision-order is favorable to defendant, you must send a certified copy of this Court's decision-order to:State of New York
Department of Correctional Services
Attn: Richard deSimone, Esq., Associate Counsel
1220 Washington Avenue
Albany, New York 12226
andDivision of Criminal Justice Services
4 Tower Place, 5th Floor
Albany, New York 12203
If the indictment is dismissed, counsel must prepare an order upon remittitur for the trial court (see CPL § 470.45) and move to seal defendant's records (see CPL § 160.50). If a new trial is ordered or if the case has been held and the matter remitted for further proceedings, counsel must contact the Supreme or County Clerk's Office to have the case placed on the calendar.
How do I request payment on an assigned appeal?
Except in cases in which payment is made by the state pursuant to Judiciary Law § 35, counsel must submit an official Fourth Department voucher form to the assigned counsel administrator for the county from which the appeal has been taken, who will forward the voucher to this Court for judicial review and determination.
Counsel assigned on appeals pursuant to Judiciary Law § 35, such as habeas corpus appeals, must submit a JC2020 voucher directly to the Appellate Division for judicial review and determination.
In addition to the completed voucher form, counsel must submit a copy of the brief(s), an itemized statement of services, receipts for disbursements, and copies of any decision-order of the Court.
If the requested fee amount on any assigned appeal exceeds the statutory maximum of $4,400, counsel must submit an affidavit setting forth the existence of unusual and extraordinary circumstances that would justify a fee in excess of the statutory maximum.
Interim vouchers may be submitted only after receipt of an order of the Court scheduling the appeal for argument or submission at a specific term of Court.Interim and Final Voucher