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Robert D. May6enjer
Cferfc of te Court
State 0/ New Yorfc
Supreme Court; Appellate Division
THirtf Jw&cial Deportment
P.O. Box 7288, Capitol Station
Albany, NY 12224-0288
(518)471-4779
ja* (518) 471-4747
http'JAvww.nycourts.gov/ad3
July 15,2014
Larisa Obolensky, Esq.
P.O. Box 494
DeM,NY 13753
Re: 22 NYCRR 821.2 fa) - Notication of Right to Appeal
Dear Ms. Obolensky:
I write to request your assistance in dealing with a recurring problem concerning
compliance with the above-referenced rule of the Appellate Division, Third Judicial
Department. The problem generally presents itself to this Court in the form of motions
pursuant to CPL 460.30 for extensions of time to take appeals from judgments of
conviction.
The typical motion, made by a defendant who has not taken a timely appeal from
his judgment of conviction rendered upon a guilty plea, seeks an extension of time to do
so, often alleging either that he was not advised of his right to appeal or that, in fact, he
was advised of his right to appeal and requested his attorney to le and serve a notice of
appeal on his behalf but that such attorney failed to do so. In response to these motions,
this Court often receives answering papers, both from District Attorneys' ofces and from
defendants' trial counsel, averring that, because the defendant had waived his right to
appeal as part of the plea bargain, a notice of appeal was not led.
Pursuant to section 821.2 (a) of this Court's Rules of Practice (22 NYCRR 821.2
[a]), it is the duty of counsel, immediately after sentencing, to advise a defendant in
writing of the right to appeal, to ascertain whether the defendant wishes to appeal and, if
so, to le a notice of appeal. This rule applies in all criminal actions, even where a
defendant has waived the right to appeal, since certain issues may survive such a waiver
(see People v Lopez. 6 NY3d 248,256 [2006]).
Members of the criminal defense bar in your county should be made aware of their
obligation to comply with this Court's rule. In complying with the rule, defense counsel
should be ascertaining whether the client understands that he has a right to appeal even
when he has waived the right to appeal. Whether or not the client wishes to appeal, his
attorney should be securing from him a document stating his desire in this regard.
I enclose a form Notice of Intention with Respect to Appeal that attorneys may use
in order to comply with section 821.2 (a) to ascertain whether their clients wish to appeal.
I ask you to disseminate this form as you deem appropriate so that we may ensure
compliance with the rule and avoid needless motion practice before this Court. If you
have any questions or concerns, please contact Ed Carey at (518) 471-4779.
Thank you for your assistance with this matter.
Very truly yours,
Robert D. Mayberger
Clerk of the Court
Enclosure
THE PEOPLE OF THE STATE
OF NEW YORK
NOTICE OF INTENTION WITH
RESPECT TO APPEAL
Defendant.
TO: COUNTY (or SUPREME) COURT,
My counsel,
COUNTY:
from the judgment rendered
, has advised me of my right to appeal
_, 20 , convicting me of the crime(s) of
and
sentencing me to
My counsel has also advised me that my appeal must be taken within thirty (30) days
from the judgment, explained the manner of instituting an appeal, indicated that he or she
will le a notice of appeal on my behalf if so requested and explained my right to request the
appellate court to assign counsel to prosecute my appeal.
do
I wish to appeal,
do not
(Circle applicable word or words.)
Dated:
Defendant
In presence of:
Attorney for Defendant
NOTICE TO DEFENDANT
Pursuant to 821.2 of the Appellate Division, Third Department, Rules of Practice,
it is the duty of counsel, immediately upon sentencing, to advise the defendant in writing of
his or her right to appeal, to ascertain whether defendant wishes to appeal and, if so, to serve
and le the necessary notice of appeal.