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Robert D. May6enjerCferfc of tfie Court

State 0/ New YorfcSupreme Court; Appellate Division

THirtf Jw&cial DeportmentP.O. Box 7288, Capitol Station

Albany, NY 12224-0288(518)471-4779

ja* (518) 471-4747http'JAvww.nycourts.gov/ad3

July 15,2014

Larisa Obolensky, Esq.P.O. Box 494DeM,NY 13753

Re: 22 NYCRR 821.2 fa) - Notification of Right to Appeal

Dear Ms. Obolensky:

I write to request your assistance in dealing with a recurring problem concerningcompliance with the above-referenced rule of the Appellate Division, Third JudicialDepartment. The problem generally presents itself to this Court in the form of motionspursuant to CPL 460.30 for extensions of time to take appeals from judgments ofconviction.

The typical motion, made by a defendant who has not taken a timely appeal fromhis judgment of conviction rendered upon a guilty plea, seeks an extension of time to doso, often alleging either that he was not advised of his right to appeal or that, in fact, hewas advised of his right to appeal and requested his attorney to file and serve a notice ofappeal 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' offices and fromdefendants' trial counsel, averring that, because the defendant had waived his right toappeal as part of the plea bargain, a notice of appeal was not filed.

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 inwriting of the right to appeal, to ascertain whether the defendant wishes to appeal and, ifso, to file a notice of appeal. This rule applies in all criminal actions, even where adefendant 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 theirobligation to comply with this Court's rule. In complying with the rule, defense counselshould be ascertaining whether the client understands that he has a right to appeal evenwhen he has waived the right to appeal. Whether or not the client wishes to appeal, hisattorney 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 usein 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 ensurecompliance with the rule and avoid needless motion practice before this Court. If youhave 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. MaybergerClerk of the Court

Enclosure

THE PEOPLE OF THE STATEOF NEW YORK

NOTICE OF INTENTION WITHRESPECT 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

andsentencing me to

My counsel has also advised me that my appeal must be taken within thirty (30) daysfrom the judgment, explained the manner of instituting an appeal, indicated that he or shewill file a notice of appeal on my behalf if so requested and explained my right to request theappellate court to assign counsel to prosecute my appeal.

doI 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 ofhis or her right to appeal, to ascertain whether defendant wishes to appeal and, if so, to serveand file the necessary notice of appeal.