DIFFERENCES IN PROCEDURE BETWEEN CIVIL AND CRIMINAL APPEALS WARREN S. HECHT, ESQ.

Transcription

1 DIFFERENCES IN PROCEDURE BETWEEN CIVIL AND CRIMINAL APPEALS by WARREN S. HECHT, ESQ. Attorney at Law Forest Hills

2

3 DIFFERENCES IN PROCEDURE BETWEEN CIVIL AND CRIMINAL APPEALS By: Warren S. Hecht, Esq. The statutory rules concerning the procedure for civil appeals generally are in CPLR 5501 et seq., for appeals to the Court of Appeals CPLR 5601 et seq. and for appeals to the Appellate Division CPLR 5701 et seq. The rules concerning criminal appeals are found in CPL et seq., CPL et seq. and CPL et seq. In addition, each of the four appellate divisions has its own rules and the Court of Appeals has its own rules. Any rule in the 500's is a Court of Appeals Rule. The Appellate Division First Department rules are sections , the Second Department rules are sections , the Third Department rules are in sections and the Fourth Department rules are in sections In citing the rules, one should preface it with 22 NYCRR such as 22 NYCRR I will be addressing appeals involving actions commenced in the Supreme Court. Although the CPL refers to procedures involving a death penalty case since the death penalty statute was declared unconstitutional in People v. LaValle, 3 N.Y.3d 88, 131 (2004) I will not mention the statutes in the outline. Many types of cases that lawyers consider to be a criminal proceeding, technically, are a civil proceeding. Examples include habeas corpus, hearing before a parole board, Article 78 proceeding of a denial of parole, a neglect proceeding in Family Court where it is alleged that the defendant engaged in conduct that would constitute a crime and risk level assessment per Sex Offender Registration Act. See CPLR 7002 (habeas corpus) (Article 78) (CPLR 7801 et seq.); (Family Court Article 10); Correction Law Section 168-d (3). -1-

4 Appeal as of Right to Immediate Appellate Court Criminal Defendant CPL Judgment; Sentence; Sentence including civil forfeiture order; setting aside the sentence upon motion of People; order denying motion pursuant to CPL for forensic DNA testing. (CPL Article 440 contains post judgment motions). Interlocutory Orders are not appealable. Can raise on appeal from judgment of conviction determination made by the Court in an Interlocutory Order. People- CPL lists twelve situations, including, the granting motion to set aside the verdict, dismissing an accusatory instrument or a count or reducing a count and directing the filing of a prosecutor s information; granting motion pursuant to CPL or CPL ; setting aside or modifying a verdict of forfeiture; granting DNA testing; order finding the defendant mentally retarded; appeal from a sentence that is invalid as a matter of law. Before trial, appeal from the granting suppression provided that the People file a statement pursuant to CPL (without suppressed evidence, remaining proof insufficient to convict as a matter of law or as a practical matter impossible to convict). Civil Judgments whether interlocutory or final unless the judgment is after an Appellate Division order disposing of all issues CPLR 5701 (a). Orders whether interlocutory or final if they fall into the seven categories listed under CPLR 5701 (a) (2). The broadest category is (iv) involves some part of the merits: or (v) affects a substantial right. Thus, the vast majority of orders are appealable as of right. Appeal By Permission to Intermediate Appellate Court Criminal- Order denying a motion pursuant to CPL to set aside a sentence or order denying a motion made pursuant to CPL to vacate a judgment CPL Civil- When order not appealable as of right, can request permission to -2-

5 appeal CPLR There are exceptions to this rule. The most common situation when the order is not appealable, even by permission, is the denial of a motion to reargue. See coursebook materials on Appellate Division jurisdiction. Court As of Right and Directly to the Court of Appeals from the Supreme Criminal None. Civil- Validity of New York or United States statutes under the state or federal constitution CPLR 5601 (b). The particulars of this section are addressed in detail in other materials in the coursebook. As of Right from Intermediate Appellate Court Criminal- None Civil - See CPLR 5601 (a) Two dissents; intermediate court finally determines action where directly involved construction of the New York state or United States constitution CPLR 5601 (b); stipulation judgment absolute CPLR By Permission from Intermediate Appellate Court Criminal- Adverse or partially adverse order of an intermediate appellate court on a question of law. This also includes the denial or granting of the motion in the Appellate Division of ineffective appellate counsel. CPL Civil- CPLR Final Order not appealable as of right- Court of Appeals or Appellate Division can grant permission to review. Non-final order only by permission of the Appellate Division CPLR 5602 (b) (1). Other situations that are less common see CPLR 5602 (a) (b) and other materials in coursebook. Oral Order -3-

6 Criminal -Does not require a written order. Can appeal from an oral order People v. Elmer, 19 N.Y.3d 501,507 (2012). Civil- Requires a written order Eaton v. Eaton, 46 A.D.3d 1432 (4 th Dept. 2007); Small v. Suffolk County Honda, 141 A.D.2d 448,449 (1 st Dept. 1988). File With Note of Appeal Criminal First Department- two copies of a profile statement listing title of action, indictment number, county and court from where appeal is taken; full names of the defendant and any co-defendants; name address and telephone number of defense counsel, charges upon which the defendant was convicted; pretrial hearings and dates, trial and/or plea date; whether the court ordered daily copy of the hearing or trial transcript were received and returned Rule (b) (1). Second Department: RADI (Request for Appellate Division Intervention) Criminal- Form D usually prepared by Clerk. Rule (b). Civil First Department - A Pre-Argument Statement except for cases originating in Family Court Rule (a). Second Department- RADI, Civil- Form A Rule (a). Third Department- File a pre-calendar statement except in cases in Family Court proceedings involving child abuse or neglect, juvenile delinquency or persons in need of supervision, appeals from decisions of the Unemployment Insurance Appeal Board and Workers Compensation Board or appeals pursuant to Correction Law Section 168-n (3) (a). Time to File Notice of Appeal Civil- Thirty days after personal service of Order/Judgment with notice -4-

7 of entry or 35 days if by regular mail CPLR Criminal- Thirty days from the imposition of the sentence CPL ; People v. Coaye, 68 N.Y.2d 857 (1986); People v. Torres, 179 A.D.2d 358 (1 st Dept. 1992). Where the sentence and entry of judgment follow an oral order, the People s appeal is within 30 days after the imposition of sentence People v. Coaye, 68 N.Y.2d 857 (1986). (Reduced conviction to a lower count and then sentenced the defendant). Thirty days after service by the prevailing party of an order not included in the judgment (post judgment motions or order when no judgment made ) (CPL (1) (a); People v. Washington, 86 N.Y.2d 853 (1995). The Court in Washington did not address whether the order has to be served with notice of entry. There is a dispute whether service with a notice of entry is required. Compare People v. Washington, 209 A.D.2d 162 (1 st Dept. 1994) (no); People v. Aubin, 245 A.D.2d 805 (3 rd Dept. 1997) (yes). When appeal is by permission, then 30 days after service of the order CPL Section (4) (a), (5) (a). Time to File Notice of Cross- Appeal Civil- A party upon whom an adverse party has served a notice of appeal or motion for permission to appeal has either 10 days after such service or 30 days after service of the order with notice of entry, whichever is longer to file a crossnotice of appeal or a cross-application for permission to appeal CPLR Criminal-No extension for filing cross notice of appeal or crosspermission to appeal listed in the CPL. Extension of Time To File a Notice of Appeal Civil -5-

8 No right to extend either by stipulation or by the appellate court Hecht v. City of New York, 60 N.Y.2d 57 (1983). Exceptions include within the time required to file notice of appeal the attorney becomes disabled, party mistakes the method to appeal seeking permission to appeal when appeal is as of right or visaversa or service timely, while filing not timely or visa-versa or an event permitting a substitution of parties occurs CPLR Criminal Defendant- Right to extend if the failure to file was due to (a) improper conduct of a public servant or improper conduct, death or disability of the defendant s attorney or (b) the inability of the defendant and his attorney to have communicated, in person or by mail, concerning whether an appeal should be taken, prior to the incarceration in an institution and through no lack of diligence or fault of the attorney or defendant. The motion is made to the immediate appellate court and has to be made within one year CPL (1). People v. Corso, 40 N.Y.2d 578 (1976). An application can be made after one year by writ of error coram nobis when an attorney failed to comply with the defendant s timely request for filing a notice of appeal and the omission could not reasonably have been discovered by the defendant within one year People v. Syville, 15 N.Y.3d 391 (2010). People precluded from raising one year limitation when through action or unjustifiable inaction by the prosecutor, defendant s diligent and good faith efforts to exercise his appellate rights within the one year time frame were thwarted People v. Thomas, 47 N.Y.2d 37 (1979). The one year rule also applies to a request for permission to appeal to the Court of Appeals CPL , Rule (g). The People have no right to an extension of time to file a notice of appeal People v. Marsh, 127 A.D.2d 945 (3 rd Dept. 1987). The defendant s failure to serve a notice of appeal on the People which he filed with the Court is not a jurisdictional defect and thus may be waived. People v. Sayles, 292 A.D.2d 641 (3 rd Dept. 2002). In any event, CPL (6) allows extension of time to serve notice of appeal on the respondent if the notice of appeal is timely filed with the Court. An order of the Appellate Division granting or denying motion to file a -6-

9 late notice of appeal is appealable by permission to the Court of Appeals CPL (6). This only applies to appeals that the party would have had as of right if the notice of appeal had been timely filed. A denial of an extension of time to make an application for permission to appeal to the Appellate Division is not reviewable by the Court of Appeals. People v. Nealy, 82 N.Y.2d 773 (1993). Fees Filing Notice of Appeal Civil-$ CPLR 8022 (a) except for a poor person, including a person represented by non-profit organization whose primary purpose is the furnishing of services to indigent persons or by private counsel working on the behalf or under the auspices of the organization. CPLR 1101, Criminal- No Fee. Perfect Appeal Criminal- None. Civil $315. Except for a poor person, including a person represented by non-profit organization whose primary purpose is the furnishing of services to indigent persons or by private counsel working on the behalf or under the auspices of the organization or when the State is the appellant CPLR 1101, 1102, 8017,8022. Third Department also exempts claimant appealing the decision of the Unemployment Insurance Board from paying the fee (a) There is no additional fee for perfecting cross-appeal if appeal perfected see Rule , Motion Civil- $45 except for a motion for leave to appeal as a poor person pursuant to CPLR 1101 (a); Rule (a) (6), (a) (2), No motion is required for poor person status when the person is represented by non-profit -7-

10 organization whose primary purpose is the furnishing of services to indigent persons or by private counsel working on the behalf or under the auspices of the organization CPLR 1101 (e). Criminal- None Right to Assigned Counsel Criminal- Indigent has the right to counsel to be appointed and paid for by the government Gideon v. Wainwright, 372 US 335, 344 (1963). Civil- No right to an attorney in private civil litigation. Matter of Smiley, 36 N.Y.2d 433 (1975). However there is a statutory right to counsel, which includes assignment of counsel for the indigent, for most matters that arise in the Family Court and in SORA proceedings see Family Court Act Section 262 and Correction Law Section 168-n(3). In some situations also constitutional right to counsel Matter of Evan F., 29 A.D.3d 905 (2 nd Dept. 2006) (neglect proceeding under Article 10 FCA). Stay Automatic stay Criminal Defendant- none. Need order granting stay and fixing bail or releasing on one s own recognizance CPL (1). Only one application allowed CPL (3); (2); see People v. Shakur, 215 A.D.2d 184 (1 st Dept. 1995). There is no direct appeal of a denial of a stay application Finetti v. Harris, 609 F.2d 594,597 (2d. Cir. 1979); see also People v. Shakur, 215 A.D.2d 184 (1 st Dept. 1995). Factors considered in a stay application. See CPL (2) (a). Stays not allowed in certain cases See CPL People- Appeal to immediate appellate court from an order reducing a count or counts of an indictment and dismissing an indictment and directing the filing of a prosecutor s information CPL (2) -8-

11 No provision vacating the automatic stay. Civil CPLR (a) government entity files notice of appeal except as to cases covered under Family Court Act Section 1114; Undertaking necessary to satisfy payment of money whether required in a lump sum or in installments; judgment/order directs execution of instrument and instrument executed and deposited in office of entry of judgment/ order; appellant possession or control of real property judgment directs be conveyed, undertaking set by Court for use and occupancy; judgment/order directs assignment or delivery of personal property and property is placed in the Trial Court or the Trial Court sets an undertaking. Automatic stay can be vacated by Court CPLR Length of Stay Criminal Stay if granted, limited to 120 days unless the appellate court extends the time for argument or submission of the appeal beyond 120 days or upon an application of the defendant the Court expressly orders that the order continue until the appeal is determined or some other future date or occurrence CPL (4), CPL (3). Upon affirmance by Appellate Division, when there had been a stay, the Appellate Division remits the case to the Trial Court where the judgment was entered. The defendant, his surety and attorney are given at least two days notice by the Trial Court for the defendant to surrender himself CPL (d) (5). A similar rule applies when a stay is granted by the Court of Appeals and the Court of Appeals then affirms CPL (b) (4). Civil Stay continues after affirmance until the determination of the motion or the appeal if motion for leave to appeal or a notice of appeal is filed within five -9-

12 days of the service of the order of affirmance or modification with notice of entry on the appellant CPLR 5519 (e). This also applies to discretionary stays. DFI Communications Inc. v. Greenberg, 41 N.Y.2d 1017 (1977). Time to Perfect Civil - Second Department- Six months from the date of the Notice of Appeal (e) (1) First and Third- Nine months from date of Notice of Appeal Rule (a) (3), Rule , Fourth Department Nine months from service of Notice of Appeal (b). Criminal First Department Defendant s appeal-120 days from last day that the notice of appeal was required to be filed Rule (b). (f). People s Appeal- nine months from filing notice of appeal. Rule Second Department Defendant s Appeal -nine months from the date of the Notice of Appeal if the defendant did not apply for assignment of counsel Rule (f). People s Appeal- six months from the date of the notice of appeal except three months for appeals under CPL (1-a) or (8) Rule (g). Third Department - 60 days after the last day for filing a notice of appeal (b). Fourth Department- Assigned counsel cases 120 days of receipt of transcript Rule Request for Enlargement of Time -10-

13 Criminal The First Department requires that the movant should submit an affidavit satisfactorily explaining the delay and stating whether there is an order of stay of judgment pending the determination of the appeal and if so when it was granted and whether the defendant is free on bail or his own recognizance see also (4) ( the sentence imposed and whether the defendant is on probation or parole, or free on an order of stay of judgment pending determination of the appeal). Second Department has the same rules for civil and criminal appeals (d). Third Department requires that the movant should submit an affidavit. The affidavit shall state (1) the date of conviction; (2) whether by trial or plea; (3) whether appellant is free on bail; (4) the date the notice of appeal was filed; (5) the date the trial transcript was ordered; (6) whether the transcript has been filed; (7) if the complete transcript has not been filed, the date it is expected to be filed; and (8) the date appellant's brief and appendix will be filed The Fourth Department requires a motion pursuant to CPL to extend the time to take an appeal shall be made within one year of the date on which the time to take an appeal expired. An affidavit in support of the motion shall set forth facts demonstrating that the appeal was not timely taken because of the improper conduct of a public servant, the improper conduct, death or disability of the defendant's attorney or the inability of the defendant and the defendant's attorney to communicate about whether an appeal should be taken before the time to take the appeal expired. (1) Filed with the motion papers shall be proof of service of the papers on defendant s trial counsel (I) Civil First Department- Affidavit satisfactorily explaining the delay and containing the following information: the nature of the order or judgement appealed from; the date the judgment or order appealed from was entered or, if the matter was transferred to this court pursuant to CPLR 7804, the date of the order of transferral; the date the notice of appeal was served; whether any enlargement of time to perfect the appeal has been granted

14 Third Department- Affidavit showing reasonable excuse for the delay and facts showing merit to the appeal or proceeding Fourth Department Affidavit showing reasonable excuse for the delay and intent to file briefly within a reasonable time (h) Dismissal Calendar Criminal First Department- Dismissal Calendar May and October. Criminal appeals or causes and all appeals involving writs of habeas corpus in criminal cases not perfected within eighteen months of awarding poor person relief are placed on the calender. Notice given to the defendant and his attorney on the appeal or one who last appeared for him. Rule (2). Second Department-No dismissal calendar. However deemed abandoned if no application for assignment of counsel is made by defendant within nine months of the date of the notice of appeal Rule (f). Civil Published in Law Journal-. First Department in May Rule Second Department periodically Rule (h). Third Department no requirement of publication. Deemed abandoned if not perfected within nine months Rule Fourth Department no requirement of publication. Deemed abandoned and dismissed if not perfected within nine months Rule (b). Withdrawal of Appeal Court of Appeals Civil- stipulation signed by attorneys for all parties to the appeal. Criminal- client must also sign request. Rule (a). -12-

15 Record on Appeal Criminal First Department- needs Court permission to proceed on the original record. Rule (a) (1). Second Department- can be heard on the original record without requesting permission from the Court. Rule (d) (viii) First and Second Departments -People s appeal pursuant to CPL (1-a) (reducing a count or counts of an indictment, dismissing the indictment or directing the filing of a prosecutor s information) should include an appendix Rule 600.8, (e) Third and Fourth Department- only by Appendix method Rule , 1004 (e) (1). Civil- Must file record; either a full record or by appendix method Rule , (a) (b), 800.4, In the First Department one can proceed on the original papers without having to request Court permission for election cases, an appeal from Family Court and appeals concerning compensation awarded to a Judicial appointee. Rule 600.6, 600.9, However, in the Second Department the following appeals and proceedings can be heard on the original record: (a) appeals from the Appellate Term; (b) appeals from the Family Court; appeals under the Election Law; (d) appeals under the Human Rights Law (Executive Law Section 298); (e) appeals where the sole issue is compensation of a judicial appointee; (f) appeals under Correction Law Section 168-d(3) and 168-n (3); (g) other appeals where a statute authorizes an original record; (h) transferred Article 78 proceedings; (I) transferred proceeding under the Human Rights Law (Executive Law Section 298); (j) special proceedings listed in Rule ; (k) appeals where the Appellate Division has authorized to proceed upon the original record. Rule (d) 1; , ,

16 In the Fourth Department transferred proceedings and election cases can be heard on the original record Rule , (a). A person granted poor person status only has to file one copy of the original record Rule (2). Appellant s Brief -14- Criminal- The First Department requires a statement setting forth the decision and judgment and sentence imposed, whether an application for a stay was made, the date of the application, to whom it was made and the decision of the Court. Rule (a) (2). Second Department. Does not require mentioning about a stay unless it was granted. In addition to setting forth the decision and judgment and sentence imposed the statement, the statement should set forth whether an order issued pursuant to CPL is outstanding, date of the order, the name of the judge who issued it and whether the defendant is free on bail or on his or her own recognizance or is incarcerated and whether there were co-defendants in the trial court, the disposition of their cases and status of any appeals by the co-defendant Rule (g) (2) (viii) (B). Civil- If perfected on original papers- The First Department requires opinion and findings of a hearing officer and the determination and decision of an administrative department board or agency to be appended to the brief filed by same (d) (1) (iv). In other cases, the opinion should be annexed to the brief Rule (d) (2) (vi). Second Department- Annex to the brief a copy of judgment or order appealed from, the decision, if any, the notice of appeal and copy of any order transferring the proceeding to the Appellate Division. Rule (g) (2) (vi). Matrimonial action First Department- Appeal from an order involving alimony and counsel

17 fees, the brief should also state the date of joinder of issue and whether the case has been noticed for trial. Rule (d) (2) (vii). Second Department- Matrimonial action involving pendente lite, brief should state whether the issue has been joined, if so the date it was joined and whether the case has been noticed for trial. Rule (g) (2) (vii). Service of Brief on the Defendant Criminal- There is no state constitutional right to file a pro-se supplemental brief. People v. White, 73 N.Y.2d 468 (1989). Nevertheless the Second and Fourth Department requires that you serve your client with a copy of the brief that you are filing and submit an affidavit of service. Rule (g) (1), Normally there is no requirement to tell the client that he has a right within 30 days to make an application to the Court for permission to file a supplemental brief See Rule (h) The Appellate Division cannot require the People to personally serve their appellate brief on the defendant pursuant to its rule-making authority. People v. Ramos, 85 N.Y.2d 678 (1995). Old rule (f). The current Appellate Division First Department rule requires the People to serve the defendant s appellate attorney if he has appeared or if no appellate attorney has appeared then on the attorney who last appeared for the defendant in the trial court Rule (f). See however, Donovan v. Pesce, 73 A.D.3d 137,141 (2 nd Dept. 2010) (upheld Appellate Term order requiring personal service of the brief on the defendant). The Fourth Department requires service on the defendant in any manner authorized by CPLR 2013 Rule (g). Civil-No requirement to serve your client with a copy of the brief. Proceed by Motion Criminal- In the Second Department when the only issue on appeal is the legality, propriety or excessiveness of the sentence, you can proceed by motion. Rule (1). -15-

18 Civil- Special Proceeding originating in Appellate Division Rule (b), (b); However the Second and Third Departments requires briefs in certain special proceedings. Rule , The Fourth Department requires briefs in all cases Rule Appeals concerning compensation awarded to a judicial appointee ; ( appellant s option whether to proceed by motion or by regular manner of appeals). Oral Argument Allowed Criminal- First Department- all cases except for an order concerning a grand jury report Rule (a) (7); (a). Second Department & Third Department All cases except legality, propriety or excessiveness of the sentence and grand jury reports. Rule (3), See however, Rule (g). Fourth Department- not allowed when only issue is the legality or length of the sentence imposed Rule Civil- The First Department lists thirteen categories of appeals that can be argued and indicates the remainder is on submission Rule (a) (b). Second Department- no argument allowed in issues involving maintenance, spousal support, child support, counsel fees, calender and practice matters including but not limited to bill of particulars, preferences, correction of pleadings, examinations before trial; discovery of records, interrogatories, physical examinations, change of venue and transfers of actions from or to the Supreme Court and determinations made pursuant to the sex offender registration act Rule Third Department- does not allow argument on appeals from the Unemployment Insurance Appeal Board, Workers Compensation Board and a -16-

19 CPLR Article 78 proceeding where sole issue is whether there was substantial evidence to support the determination Rule (a). Fourth Department- Not allow argument on a transferred CPLR Article 78 proceeding where sole issue is whether there was substantial evidence to support the determination Rule Leave Applications to the Court of Appeals Number of and what is included in the Application. Civil Two. Can first request leave from the Appellate Division and once it is denied, then from the Court of Appeals CPLR 5602 (a). In the Appellate Division it is made by motion to the Court and not to a particular judge. Must be made by motion. Rule indicates what is necessary to include in the application. Criminal Only entitled to one leave application either to the Appellate Division or to the Court of Appeals CPL (3). However, there is no right to request leave from a denial by the Appellate Division of a request for leave to the Appellate Division. People v. Adams, 82 N.Y.2d 773 (1993); People v. James, 206 A.D.2d 243 (1 st Dept. 1994). Under most circumstances the one application should be made to the Court of Appeals and not to the Appellate Division. Although one s chance for obtaining leave to the Court of Appeals is slim, the chances are better with a request to the Court of Appeals and not to the Appellate Division. The reason given is that the Appellate Division wants to let the Court of Appeals control its calendar and to decide which cases it wants to consider. The exception to the rule is where there is a dissenting Judge. In a criminal case the party requesting leave to appeal to the Court of Appeals in the Appellate Division has the right to request leave from any Judge who was on the panel. -17-

20 Format Applications to the Chief Judge for leave to appeal in a criminal case (CPL ) shall be by letter addressed to 20 Eagle Street, Albany, New York , and shall be sent to the Clerk of the Court, with proof of service of one copy on the adverse party. The letter should include the names of all co-defendants in the trial court, if any, and the status of their appeals, if known; whether an application has been addressed to a justice of the Appellate Division; whether oral argument is requested and grounds upon which leave to appeal is sought. Particular written attention shall be given to reviewability and preservation of error identifying and reproducing the particular portions of the record where the questions sought to be reviewed are raised and preserved. Also included are a copy of the briefs submitted in the immediate appellate court, the order and decision of the immediate appellate court and all relevant opinions or memoranda of the courts below along with any other papers to be relied upon in furtherance of the application and if the defendant is a corporation or other business entity, a disclosure statement Rule (b) (1). After the application is assigned to a Judge for review, counsel will be given an opportunity to serve and file additional submissions, if any, and opposing counsel will be given an opportunity to respond. Rule (a) An application for leave to appeal from an intermediate appellate court order determining an application for coram nobis relief shall include: (I) the order and decision sought to be appealed from; (ii) the papers in support of and opposing the application filed in the intermediate appellate court; and (iii) the intermediate appellate court decision and order sought to be vacated, as well as the briefs filed on the underlying appeal, if available. CPL (b)(2). It is important that when you make the application to request leave you must raise all the issues that you raised in the Court below. Also, where applicable one should raise a claim of the violation of an amendment to the United States Constitution. The failure to raise a federal constitutional claim in the leave application, even if raised in the Trial Court and in the Appellate Division, does not preserve the claim for an application in the Federal Court for Habeas Corpus or on -18-

21 certiorari appeal O Sullivan v. Boerckel, 526 U.S. 838, 119 Sct (1999); Picard v. Connor, 404 US 270 (1971). Court of Appeals does not assign counsel for leave applications. Once leave is granted, an application could be made for assignment of counsel Rule (e). A request for a stay can be incorporated in an application for leave to appeal or made separately by letter, with proof of service of one copy on the other side. The letter should state (a) whether the relief sought has been previously requested; whether the defendant is presently incarcerated and the incarceration status, if known of any co-defendants and defendant is at liberty whether a surrender date has been set and the conditions of the release. Rule (f). Civil- only by motion. Need to show timeliness, jurisdiction and reason to grant leave Rule Basis for Affirmance Criminal An appellate court cannot affirm a judgment in a criminal case on a ground not decided adversely to the defendant-appellant in the Trial Court People v. LaFontaine, 92 N.Y.2d 470,474 (1998); CPL Section Civil An appellate court can affirm on a ground rejected by the Trial Court. See Parochial v. Board of Education, 60 N.Y.2d 539,545,546 (1983) Ineffective Assistance of Counsel Criminal- Constitutional right to effective counsel. A claim of ineffective trial or appellate counsel can be raised in the appellate courts if based on the record before the Court. A claim of ineffective assistance of trial counsel can be brought on direct appeal or by granting of leave to appeal the denial of a CPL motion alleging ineffective assistance of trial counsel. Ineffective -19-

22 assistance of trial counsel is usually raised first in the trial court by motion made under CPL see People v. Rivera, 71 N.Y.2d 705 (1988). Ineffective assistance of appellate counsel is brought by writ of Error Coram Nobis in the Appellate Division People v. Bachert, 69 N.Y.2d 593 (1987). The issue of ineffective appellate counsel is first raised in the immediate appellate court with a right to request leave to appeal in the Court of Appeals if the claim is denied. See CPL (1). Civil- A claim of ineffective counsel is not entertained except in extraordinary circumstances. Galil v. Scott, 61 A.D.3d 820 (2 nd Dept. 2009); Olmstead v. Federated Department Stores, 208 A.D.2d 979 (3 rd Dept. 2004). If counsel makes a mistake, the remedy is to sue for malpractice. However, in Family Court appeals such as under Article 10, the constitutional standard is the same as in a criminal proceeding Matter of Alfred, 237 A.D.2d 517 (2 nd Dept. 1997). Trial Counsel s Obligations Criminal & related proceedings Trial Counsel has an obligation in criminal actions/ CPL motions, habeas corpus and Article 78 actions arising out of criminal proceedings, upon conviction or denial of motions made under CPL or CPL or denial or dismissal of a habeas corpus or Article 78 proceeding, upon the pronouncement of sentence or service of the order, to give written notice to his client advising of his rights concerning the appeal and requesting instructions about what the client wants to do. Rule (b), (a)(b). The First Department also includes a determination revoking parole (b) (1). The Third and Fourth Departments do not have any requirement in an Article 78 proceeding. Rule 821.2, Counsel also has the obligation to inform the defendant of his right upon proof of financial inability to prosecute the action as a poor person and interalia have counsel appointed. Rule (b), (b) (3), 821.2, If the -20-

23 client indicates that he wants to appeal or make an application, then counsel is obligated to file the necessary formal notice of appeal or application to the appropriate appellate court. Rule (a)(b) (4), (a) (b), (b), (a) In the Second Department if counsel has not been retained to prosecute the appeal, the notice of appeal should indicate that it is being filed per rule (a) and it should not be deemed counsel s appearance as the appellant s attorney for the appeal. If transcribed at trial per order of the Court, the trial counsel is required to give copy to the defendant s appellate counsel. Rule 606.6; In the Second, Third and Fourth Department if the defendant has assigned counsel in the trial court and the People appeal to the Appellate Division, the defendant s trial counsel continues as the defendant s appellate counsel as the respondent on the appeal until entry of the order determining the appeal and should perform any additional duties as required by the rules unless relieved by the Court. Rule (f), (h) (4), The failure to do so warrants the granting of a writ of error coram nobis People v. Braun, 15 N.Y.3d 875,876 (2010). In the First Department, if no appellate counsel has appeared for the defendant, assigned trial counsel upon receipt of the People s brief shall make diligent efforts to locate the defendant and if located, in writing inform the defendant that the People have filed a brief, the consequences of the appeal and the defendant s rights. Rule (d) (3). There is no requirement that assigned or retained trial counsel prepare and file a respondent s brief for the defendant. Rule (a) (1). If trial counsel is a member of the assigned counsel appellate panel, he or she, with the defendant s written consent, may apply to the Appellate Division for appointment as appellate counsel. Rule (g). If the defendant s trial counsel was retained and the People appeal, then the trial counsel upon receipt of the order by the People, has to inform the defendant of the consequences of the People s appeal and right of the defendant, if indigent, to the appointment of counsel. People v. Forsythe, 105 A.D.3d 1430, 1432 (4 th Dept. 2013); Second Department Rule (d) (e) (duty starts upon -21-

24 receipt of Notice of Appeal); First Department Rule (d) (duty commences upon receipt of order being appealed; makes no distinction between assigned and retained trial counsel). People v. Garcia, 93 N.Y.2d 42,44 (1999) which involved a People s appeal the Court held that the Trial Court is required to inform the defendant of the right to appellate counsel and how to obtain assigned counsel if indigent. If the Trial Court did not inform the defendant of said right then the Appellate Division should do so. In addition, the Appellate Division had an obligation to determine whether the defendant was represented or had waived counsel before it can consider and decide the People s appeal. Id at 46 Civil Generally Representation ends upon entry of final order or judgment in the Trial Court. Vitale v. La Cour, 92 A.D.2d 892 (2 nd Dept. 1983). No requirement to appear as appellate counsel except per agreement. Nevertheless good idea to advise the client of right to appeal and time limitations for filing notice of appeal. The Fourth Department requires that assigned or retained Trial Counsel has an obligation certain proceedings in Surrogate s Court or Family Court upon entry of an order in which his client was unsuccessful to give written notice to his client advising him of the time limitations applicable to taking an appeal or moving for permission to appeal; the possible reasons upon which an appeal may be based; the nature and possible consequences of the appellate process; the manner of instituting an appeal or moving for permission to appeal; the procedure for obtaining a transcript of testimony, if any; and the right to apply for permission to proceed as a poor person Rule a (a,b) Moreover, when a party or the law guardian determines to appeal or to move for permission to appeal, counsel or the law guardian shall serve the notice of appeal or motion for permission and shall file the notice of appeal or motion for permission Except when counsel has been retained to prosecute the appeal, the notice of appeal may include the statement that it is being filed and served on behalf of appellant pursuant to 22 NYCRR a (c) and that it shall not be deemed an appearance by counsel as counsel for appellant on the appeal. When a -22-

25 party has indicated a desire to appeal, counsel shall, when appropriate, move for permission to proceed as a poor person and assignment of counsel pursuant to 22 NYCRR Rule a (c-e). Appellate Counsel s Obligations Appellate counsel has a duty upon service of notice of appeal or upon an order of appointment to notify the defendant that the People have taken an appeal and the consequences of the appeal Rule 606.5(d). Appellate counsel in the appellate division has an obligation upon affirmance in criminal actions/ CPL motions, habeas corpus and Article 78 actions arising out of criminal proceedings of a conviction or denial of motions made under CPL or CPL or denial or dismissal of a habeas corpus or Article 78 proceeding or upon entry of the order, to give written notice to his client advising of his rights concerning right to make an application for leave to appeal and requesting instructions as to whether the client wants to do so. Rule (a)(b). First, Third and Fourth Departments omits Article 78 proceeding (b) (2), (b), (b). Second Department also includes upon appeal by the People results in an order by the intermediate appellate court, adverse or partially adverse to the defendant Rule (e). If the client indicates that he wants to make an application then counsel is obligated to file the necessary application to the appropriate appellate court. Rule; (b) (2), (a), (b), (b). In addition, the First Department requires that parolee s counsel, after notice of an adverse determination by the Board of Parole revoking his parole, shall advise the parolee of his right to bring an Article 78 proceeding and the time limitations to bring said proceeding Rule (b) (2). In Article 78 or a habeas corpus proceeding where there are two dissenters, appellate counsel in his written notice shall indicate to the defendant of his absolute right to appeal to the Court of Appeals. Rule (b), (b), (2), (b), (b) (only mentions habeas corpus). Second Department- In Article 78 or a habeas corpus proceeding where -23-

26 there are two dissenters if counsel has not been retained to prosecute the appeal in the Court of Appeals, the notice of appeal should indicate that it is being filed per rule and it should not be deemed to be counsel s appearance as the appellant s attorney for the appeal. Rule (b). Frivolous appeals Assigned counsel Criminal- If assigned counsel believes that an appeal is wholly frivolous the attorney may request permission to be relieved of the assignment. The request must be accompanied by an Anders brief. Anders v. California, 386 US 738 ( 1967); People v. Stokes, 95 N.Y.2d 633 (2001) A copy of the brief has to be sent to the defendant. Id In the brief, counsel has to recite the facts and mention potential points and citations why no non frivolous issues can be raised. People v. Stokes, 95 N.Y.2d 633 (2001). Counsel also has to send a letter to the client indicating that if the defendant wishes to file a pro-se supplemental brief the defendant should notify the Court within 30 days after mailing, of his or her intention to do so People v. Saunders, 52 A.D.2d 833 (1 st Dept. 1977); Rule (g); see. Rule (q) (a) 30 days before return date of motion. In an assigned counsel case, if the attorney is incorrect and that there is a non frivolous issue on appeal, then the attorney is discharged and a new attorney is assigned. People v. Davis, 73 N.Y.2d 864 (1989). The Court names the outgoing attorney in its order, which is published in the NY Law Journel. See, e.g., People v. Rawlings, 150 A.D.2d 619 (2 nd Dept. 1989). Civil- Could be subject to sanctions Rule (h), Rule (c). If assigned counsel believes that appeal is totally frivolous, then counsel proceeds in the same manner as assigned criminal counsel See, e.g., Matter of Stuart v. Stuart, 21 A.D.3d 967 (2 nd Dept. 2005). In the Interest of Justice -24-

27 Criminal- Right for the Appellate Division to consider unpreserved issues in the interest of justice. CPL (3) (c)(6). The Court of Appeals has no right to consider issues in the interest of justice CPL (1). Civil- Generally no right to consider on appeal issues not raised in the Court below. There are some exceptions to this rule. See materials submitted in the preservation portion of the coursebook for examples of exceptions. Settlement Conferences Civil- First Department-Rule (e) Second Department - Rule (b); Third Department- Rule b Criminal- No conferences. CPL & CPLR The CPL does not apply in civil cases. See CPL 1.10.Does the CPLR apply to Criminal Proceedings? It is clear where the CPL explicitly refers to CPLR such as CPL 60.10, then the CPLR applies. See, e.g., People v. Cratsley, 68 NY2d 81 (1995). The issue is in the other cases. The Appellate Division in the First and Third Departments have held that the CPLR has no application in criminal actions and proceedings People v. Stacchini, 108 A.D. 3d 866, FN1 (3 rd Dept. 2013); People v. Silva, 122 A.D.2d 750 (1 st Dept. 1986); See also People v. Crisp, 268 A.D.2d 247 (1 st Dept. 2000). Although the Appellate Division Second Department has not decided the issue the Appellate Term has agreed with this position People v. Manupelli, 22 Misc.3d 67 (App. Term 2 nd Dept. 2008). Nevertheless, some lower courts including those in the covered under the First Department have ruled otherwise See, e.g., People v. Ellington, 2012 NY Slip Op (U) (Sup. Bronx 2012). -25-

28 -26-