Letter to Hon Martin Shulman October-1-2018


Letter to Hon Martin Shulman October-1-2018

Published On: Oct 01, 2018

Matthew Bova & Scott Danner 

Co-Chairs, Appellate Courts Committee



Michael J. McNamara


Stephen C. Lessard

Vice President

Vincent T. Chang


Asha Smith


Adrienne B. Koch


Past President

Carol A. Sigmond

October 1, 2018

RE: Reform of the Appellate Term Information

Forms and Poor-Person-Relief Affidavit


Letter to Hon Martin Shulman


Hon. Martin Shulman

Presiding Justice

Appellate Term, First Dept.

60 Centre Street, Rm. 655

New York, NY 10007


Your Honor:

This letter proposes several modifications to the appellate-informational forms provided to defendants appealing their convictions to the Appellate Term.

* * *

In New York, a defendant has a constitutional and statutory right to appeal any criminal conviction. A defendant also has the right to counsel at the notice-of-appeal stage and the appeal itself (unless the conviction is for a traffic infraction). Counsel is similarly required by court and ethical rules to assist the defendant with a request for assignment of appellate counsel. Nevertheless, thousands of appeals still slip through the cracks due to counsel’s failure to file a notice of appeal or ensure assignment of appellate counsel. Thus, it is imperative that criminal defendants be provided all the necessary information and resources to protect their appeal rights.

Respectfully, the forms used by the Appellate Term to advise defendants of their appellate rights, and the Appellate Term’s poor-person-relief affidavit, tend to undermine, rather than enhance, access to the appellate courts. As detailed below, the Committee believes that the following forms, critical to the navigation of the appellate process, should be made more complete and easier to understand:





The Committee recommends that the Information and Instruction Forms be consolidated into a single packet and that the language currently contained in the two forms be modified. See Proposed Modified Form, Ex. A. Further, the Financial Disclosure Affidavit should be discontinued in favor of the Appellate Division form.


Upon sentencing, defendants are supposed to receive the “Information Regarding Your Right to Appeal” form:



Immediately after the pronouncement of sentence, where there has been a conviction by plea, or after trial, this form is to be given to the defense attorney. The defense attorney should then give It to his client and state on the record that the defendant has been given written notice of his right to appeal.



You have the right to appeal your conviction and/or sentence.


In order .to exercise this right, you or your attorney must file a NOTICE OF APPEAL with the clerk of this court, within thirty (30) days following the imposition of the sentence.


If you desire your present attorney to file a notice of appeal for you, you should complete the bottom section of this form and deliver or mail ft to your attorney.


If you intend to file the notice of appeal yourself, you must send two (2) copies of the notice of appeal to the Clerk of the Criminal Court at the address indicated below, You also must send one copy to the District Attorney’s Office. The address for the District Attorneys’ Offices for each County is listed below. Be sure to choose the correct County.


If you have appeared pro se (without counsel) you may request the Clerk of the Court to file the notice of appeal on your behalf. To do to complete the bottom section of this form and deliver it to the Criminal Court Appeals Bureau at the address indicated below.


If you are without funds, after the notice of appeal has been filed, you must write to the Appellate Term requesting that counsel be assigned to you for the purpose of appeal The letter must be notarized. Send this sworn letter to the Appellate Term for the appropriate County at the address listed below.


In your, notarized letter, you should request that you be granted permission to appeal based on the transcript of the proceedings. You should indicate that you are without funds with which to retain counsel or to purchase a transcript of the proceedings. State fully your financial circumstances, explaining why you cannot afford to hire an attorney or purchase a transcript of the proceedings. You must write this letter yourself.


The responsibility to maintain and distribute the Information Form falls solely on the court officer, and practices vary by courtroom. On May 24, 2018, a random check of several Criminal Court parts showed that at least one part did not have any copies of the form and others kept them out of reach of defense counsel (rather than on a table where other forms are available to counsel or the public). Staff from an indigent legal service provider explained to us that, in general, the forms are only given to defendants if they explicitly ask for one (rather than as a matter of course).

The substance of the Information Form is also problematic in several respects:

First, the Form does not explain the nature and purpose of an appeal or that the procedure in the appellate court differs from that of the trial court—including that a defendant need not regularly appear in the appellate court. This difference in practice is significant for indigent defendants who cannot afford to take time off for repeated court appearances.

Second, the Information Form fails to explain the defendant’s right to counsel at the stage between sentencing and the appeal. Specifically, the Form does not indicate that:



Third, the Information Form fails to explain that the filing of a notice of appeal merely preserves the right to appeal, and is not itself a challenge to a conviction. By omitting this critical information, the Form creates a risk that defendants may be misled into believing that they must determine, moments or days after the conviction, whether to risk additional punishment by pursuing an appeal seeking vacatur of a guilty plea. The reality, however, is that the notice of appeal merely “preserves” the right to appeal. It is only later, after assigned appellate counsel diligently reviews the record and advises the defendant about the risks and benefits of perfecting an appeal, that the defendant must decide whether to accept the risks of an appeal.

Fourth, the Information Form suggests that a represented defendant must take steps to protect his/her appellate rights that should be performed by counsel instead:


[Y]ou or your attorney must file a NOTICE OF APPEAL with the clerk of this court within thirty . . . days. If you desire your present attorney to file a notice of appeal for you, you should complete the bottom section of this form and deliver or mail it to your attorney. If you intend to file the notice of appeal yourself, you must send two copies of the notice . . . to the Clerk of the Criminal Court. . .


Under no circumstances should a represented defendant be personally filing the notice of appeal—that is trial counsel’s job. Similarly, it’s not the client’s responsibility to “deliver” a request to file a notice of appeal. Instead, counsel must either: (1) file the notice; or (2) decline to file it after securing informed consent from the client.

Finally, the Information Form instructs defendants to write their own letter to the Appellate term requesting poor person relief. As noted above, however, trial counsel has an obligation to apply for poor person relief, and defendants should be informed of the availability of assigned counsel to provide this assistance.

Apart from the Information Form maintained and distributed in the criminal parts, the Appeals Bureau also gives defendants the Instruction Form. This Form, which overlaps significantly with the Information Form, attempts to apprise defendants of the requirements to appeal to the Appellate Term.

The Instruction Form omits much of the same critical information omitted from the Information Form. For example, the Instruction Form does not inform defendants of their rights to counsel at the notice-of-appeal stage, poor-person relief stage, and the appeal itself; it also fails to inform the defendant that a notice of appeal does not mandate a full appeal be taken.

Moreover, some of the instructions in the Instruction Form are provided in language that may be difficult for non-lawyers to understand. For example, for unrepresented defendants (and represented defendants whose lawyers irresponsibly fail to file the notice of appeal), the following advice is provided:


3 An appeal by the defendant from a conviction and/or sentence of the Criminal Court of the City of New York is authorized as of right. (Section 450.10CPL) within thirty (30) days after sentence is imposed, the Defendant must file a written Notice of Appeal in duplicate. (Section 460.10 {1a,1b} CPL) The original should have Proof of Service of a copy upon the District Attorney (or other Prosecutor of the matter being appealed) within the county in which judgement was entered.


As detailed in our proposed modified form, Ex. A., we believe this language can be simplified, making it more likely to assist defendants in protecting their appellate rights.

The Instruction Form is either incomplete or confusing in several other respects. Paragraph 4, (excerpted right), addresses appeals from collateral motions. This paragraph is likely to confuse a lay defendant and should simply be in a separate collateral-motion form.

Paragraphs 5 through 7 (also excerpted right) outline requirements that a defendant would only have to personally satisfy if proceeding pro se. Nevertheless, the Instruction Form’s inclusion of these requirements may suggest to those defendants seeking counsel that they must satisfy these requirements on their own, thus deterring an appeal. Further, the Form’s description of the requirements for perfection of an appeal fail to clarify what a brief is, where and how to order the copies of the Record on Appeal, or that these steps do not apply to a defendant represented by counsel. Perfecting an appeal based on these instructions would be quite difficult for a lay defendant.

Paragraph 8 contains the only mention of applying for poor person relief, and merely says:

“Application for the right to Appeal as a Poor Person must be made to the appropriate Appellate Term.” No practical advice or further explanations are offered.

Paragraph 8 fails even to mention that such an application would result in the assignment of an appellate lawyer, who would perfect the appeal by gathering the record and filing the brief. Because defendants are automatically given counsel at the trial level, the requirement that they   apply for new counsel is not intuitive and should be explained in appropriate detail.

The Financial Disclosure Affidavit currently in use in the Appellate Term is difficult to access, burdensome for defendants to complete, and conflicts with the Information Form.


To our knowledge, the Financial Disclosure Affidavit can be accessed only in person, at the desk of the Appeals Bureau in Room 401 (60 Centre Street). Given that the criminal parts sit at 100 Centre, and the forms are not available online, the difficulty in accessing the forms may deter applications for poor person relief and appeals by indigent defendants.

Once a defendant has overcome the difficulty of obtaining the form, he/she must then face the difficulty of completing it. For example, the information requested at page 3 of the Appellate Term’s Financial Disclosure Affidavit (excerpted left) would be difficult to answer without a full audit of a defendant’s financial situation. This is above and beyond what defendants should have to particularly when counsel was already assigned below.


Indeed, given the lower court’s prior indigency finding, it should suffice for defendant’s counsel to affirm that no material change in the defendant’s financial situation has occurred during the course of the trial. Indeed, until recently, the Appellate Term Clerk’s Office did not require an affidavit from the defendant where an assigned trial attorney submits an affirmation swearing upon information and belief that the client is indigent. Now the Appellate Term is requiring a new affidavit from the defendant. This policy is more cumbersome than the Rules of the Court of Appeals, which allow a defendant to continue an assignment-of-counsel order based on appellate counsel’s affirmation that the defendant’s financial circumstances have not changed. The Appellate Term should adopt the Court of Appeals’ policy.

Finally, the detailed information requested by the Financial Disclosure Affidavit conflicts with the Information Form, which only instructs defendants to send a letter to the Appellate Term requesting assignment of counsel. It makes little sense to subject a defendant to significantly more arduous paperwork when an unsworn letter attesting to financial need is also acceptable. These conflicting instructions create an unnecessary risk of confusion and duplication of efforts.

We believe that a few simple reforms to the Existing Forms and the Affidavit could materially improve appellate access in the Appellate Term.

The Information and Instruction forms should be combined into one single form and provided after sentencing. This would eliminate the redundancy and conflicts, and streamline the process.

As for the substance of the combined form, attached as Exhibit A is a proposed instruction packet that would ideally be given to every defendant convicted in Criminal Court. The proposed form addresses the problems with the current forms (highlighted above). The form includes general information on appeals, information about the right to counsel and the notice of appeal, steps on how to appeal a conviction, and a form Notice of Appeal. Perhaps most importantly, this form informs defendants that their lawyers cannot simply abandon them at the critical stage between sentence and the appeal’s perfection—instead counsel must protect appellate rights.

This new form should be made available in court parts, the Appellate Term clerk’s office, and on the Court’s website.


Unlike the Appellate Term Financial Disclosure Affidavit, the Appellate Division’s template is relatively straightforward and does not impose unreasonably cumbersome demands on impoverished defendants. The Appellate Division template is a straight forward two-page document. Unlike the Appellate Term template, the information requested by the Appellate Division template is readily available to a defendant and still covers all possible sources of income.

Moreover, the Appellate Division template is readily accessible: It is available online, and can be printed by a defendant on demand, whereas the Appellate Term affidavit is, to our knowledge, available only at the desk in Room 401. In addition to being provided online, the revised form should also be included in the appeal packet along with the combined and revised Information and Instruction Forms.

* * *

Thank you for your consideration of these proposals. We would welcome the opportunity to discuss them with you further.


Very truly yours,


Matthew Bova and Scott Danner

Co-Chairs, Committee on Appellate Courts




You have the right to appeal your judgment or sentence to an appellate court and to get an attorney assigned to pursue your appeal if you cannot afford appellate counsel.


The following are general instructions on how to start an appeal, and what is required if you would like to get an appellate attorney assigned, or if you instead want to proceed pro se (without counsel). For further details or questions, contact the agencies below.


I: General information





II: The First Step





III: How to Get Assigned Appellate Counsel





IV: How to Proceed Pro Se (without counsel)











* * * * *


For more information on bringing an appeal to the Appellate Term, or should you have any questions, you may contact the following offices.


Criminal Court Appeals Bureau

1 Centre Street, room 1623

New York, NY, 10007

(646) 386-4949

Appellate Term, First Department

60 Centre Street, room 401

New York, NY, 10007

(646) 386-3040

Appellate Term, Second Department

141 Livingston Street,

Brooklyn, NY, 11201

(347) 401-9580





COUNTY OF ________________









Docket No. __________




Defendant – Appellant.










PLEASE TAKE NOTICE that _________, hereby appeals to the Appellate Term of the Supreme Court of the State of New York in the First Department, from a judgment and conviction rendered against defendant on ____, 20_, in the Criminal Court, ________ County, and from each and every part of such judgment of conviction and sentence.

Dated: __________, 20__

__________, New York

Yours, etc.,



Print name: ______________

Address: _________________


Phone: ___________________


To: Hon. _________________.

________ County District Attorney


_________, New York __________


Appeals Clerk 

Criminal Court, NY County 

1 Centre Street, room 1623 

New York, NY, 10007


Criminal Court Appeals Bureau 1 -646-386-4949

346 Broadway Room 400S

New York, N.Y. 10013


1 An appeal from a judgement and/or sentence of the Criminal Court of the City of New York is to the Appellate Term of the Supreme Court. New York and Bronx Counties is to the Appellate Term – Supreme Court – First Department. In Kings, Queens and Richmond (Staten Island) Counties, the appeal is to the Appellate Term – Supreme Court – Second and Eleventh Districts of the Second Department.


2. For filing purposes the Clerk of the Appeals Bureau is the Clerk referred to in Section 460.10 (1a) of the Criminal Procedure Law (CPL).


3. An appeal by the defendant from a conviction and/or sentence of the Criminal Court of the City of New York is authorized as of right. (Section 450.10CPL) within thirty (30) days after sentence is imposed, toe Defendant must file a written Notice of Appeal in duplicate. (Section 460.10 {1a,1b} CPL) The original should have Proof of Service of a copy upon toe District Attorney ( or other Prosecutor of the matter being appealed) within the county in which judgement was entered.


4. An appeal, by the defendant, from an order denying a Motion to Vacate a judgement (Sec. 440.10 CPL) or to set aside a sentence (Sec. 440,20 CPL) is authorized by permission (Sec. 450.15 CPL) An Application for a Certificate Granting Leave to Appeal, is made to toe appropriate Appellate Term. The Application must be made within thirty (30) days after service upon toe defendant of a copy of the Order from which the defendant seeks to appeal, and must be on reasonable notice to the people. The Application must be in writing, must set forth the questions of Law and/or fact to be reviewed and must contain a statement as to whether or not any such Application has been previously made. No more than one Application may be made. Upon issuance of the Certificate, the defendant must within fifteen (15) days of such issuance, file the Certificate together with a written Notice of Appeal (In duplicate). The Notice should bear Proof of Service of a copy upon the Prosecutor concerned.


5. The Record on Appeal may be printed or typed.


6. The Record on Appeal to be filed, with the Clerk of the Appeals Bureau, within one hundred twenty (120) days after the imposition of sentence and shall consist of:

A. A Certified Copy of the Criminal Court Information, or Appearance Ticket with the various attachments and endorsements.

B. The original copy of stenographic transcript of the minutes of the Arraignment, Hearing, Trial or Plea and Sentence, and any other proceeding pertinent to the Appeal.

C. A stipulation endorsed by the adversaries waiving the reproduction of any transcripts noted in B .above, if the Appeal is to be limited to issues not encompassed by the waived minutes. The Record on Appeal must bear Proof of Service of a copy upon the prosecutor concerned.


7. Papers to be filed with the Appellate Term consist of:

A. Notice of Argument (First Department) or a Note of Issue (Second Department). An original plus four (4) copies of the brief (First Department) or an original plus three (3) copies of the brief (Second Department). In either case, an additional copy of the brief must be served upon the prosecutor concerned. The Appellate Term will provide you with information concerning the make-up and contents of these papers.


8. Application for the Right to Appeal as a Poor Person must be made to appropriate Appellate Term.


9. Application for an Order Staying Judgement or Sentence of the Criminal Court is made, upon reasonable notice to the people, to a Justice of the Supreme Court of the Judicial District embracing the County in which judgement was entered. Not more than one (1) application may be made (Sec. 460.50[3] CPL).


10. Appellate Term – Supreme Court First Dept. 60 Center St.

New York, N.Y. 10007



Appellate Term – Supreme Court Second & Eleventh Districts

141 Livingston St.

Brooklyn, N.Y. 11201






People of the State of New York

: Affidavit in Support of

: Motion to Proceed as a Poor Person & Assignment of Counsel



: Indictment No. _________________





State of New York

County of ________________ss.:

__________________________________, being duly sworn, deposes and says:






an attorney employed by the

[  ] Legal Aid Society [  ] Bronx Defender Service

[  ] Neighborhood Defender Service,



[  ] A member of the 18-b Assigned Counsel Plan,


[  ] other assigned counsel (explain),





[  ] retained counsel (explain retainer)





12 During the trial proceedings, I (check one box):

[  ] was incarcerated.


[  ] released on my own recognizance.


[  ] released on bail in the sum of $____________, which was posted

By (fill in details)_____________________________________



Wherefore, I respectfully ask for an order permitting me to prosecute this appeal as a poor person and I be furnished with the stenographic transcript of this action without fee and that J be assigned an attorney to represent me on appeal and for such other and further relief as may be proper and equitable.




Sworn to before me

this_____day of_____2011



Notary Public







(646) 386-3040

Re: People –v- _________________________

Docket # ________________


Dear Defendant,


Complete the attached questionnaire and return it to the address shown above. The last page of the questionnaire must be signed before a notary public swearing/affirming to the truth of the information provided.


All questions must be answered, “None” and “does not apply” may be acceptable answers, if appropriate.


If you are under 18 years of age, your parent or guardian must complete the questionnaire and sign the last page before a notary public.


Very truly yours,



I (the defendant) was convicted in Criminal Court______County (New York –or- Bronx County)

Of the Charge of ________on ______________(date).


The conviction was after trial________or _________a plea of guilty (check one).


Was a fine imposed ? Yes _______ , _________ No (Check one). If yes, how much was the



Has the fine been paid? ________________Yes, ________________ No. (check one)


Has the execution of the sentence (judgment) been stayed? _______ Yes, ______ No. (check one). If

“yes”, name of the justice______________________________.

c. Was bail set? Yes _______ No __

If YES how much was the bail? ______________

Who paid the bail? __________________





Telephone No. __________________________

Date of Birth ____________________________


Single (   ); Married (   ); Separated (   ):





(b) Are you or your spouse presently employed?

Yes _________ No __________

(c) State name and address of your employer and gross salary received;





(d) State your spouse’s occupation/profession.

State name and address of spouse’s employer and gross salary received:





Are you suffering from any physical disability which prevents your performing duties necessary to your occupation/profession?


5. Number of exemptions claimed on your income tax forms:



6. List all of the following:

A- Bank accounts (Savings and Checking)

Include name, location and amount.




B- insurance Policies (include company-amount)





C-Stock and Bonds-Savings Certificates_________________



D- Real Estate _________________________________

1- Purchase date and price ________________________

2- Amount of monthly mortgage payments ___________

3- Payments remaining ____________________________




1- Make, Model and Year ______________________



2- If financed, number and amount of payments remaining ______________

F- Any other investments in your name or your immediate family _____________



7. My income and expenses are as follows:

A- Income weekly _____, every two weeks ________, monthly ________, (check or circle one).

My salary ___________ (gross); Net -___________________ after deducting Federal, State

city and Social Security


My spouses salary ______________(gross); Net- _________ Taxes

Welfare Payment ______________; Case # ________________ Center: _________________

Social Security Payment _________________

Other Income ________________

Total Income-__________________________

B- Expenses weekly ______, every two weeks ______, monthly ______, (check or circle one).

Rent/Mortgage Payment _______________

Food: ___________________________

Clothing & Cleaning of Clothes ___________

Utilities (electric, gas, telephone, heat, water) _________________

Automobile Expenses ____________

Repayment of Loans Purpose of loan ________________, payment _____________



Other Expenses (specify) – ______________________________________________________

Total Expenses – ________________________________________________


C- If you show no income or a monthly income far less than your monthly expenses, state how you are obtaining the basic necessities such as food, clothing and shelter:




8. Other Comments (if any): -________________________________________________




I authorize the Court to investigate the answers given in this application, which are true to the best of my knowledge.


I realize if I intentionally give false answers to any of the questions in this application, I could be prosecuted for the crime of perjury.


Signature ____________________

Address _____________________



Sworn to before me this

___day of ___________


Notary Public


  1.  N.Y. Const. Art. VI § 4(k); People v. Callahan, 80 N.Y.2d 273, 284 (1992); People v. Pollenz, 67 N.Y.2d 264 (1986); C.P.L. § 450.10(1). Although the federal constitution may not guarantee the right to appeal, the State Constitution—that is, Art. VI § 4(k)—most certainly does. E.g., Pollenz, 67 N.Y.2d 264.
  2.  People v. Syville, 15 N.Y.3d 391 (2010); Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
  3.  County Law § 722(5) and § 722-a (requiring the assignment of appellate counsel in all criminal cases—including violations—with the exception of traffic violations).
  4.  22 N.Y.C.R.R. § 671.3(b)(3)-(4); ABA Defense Function Standards 4-8.2 (b) (1993); ABA Standards for Criminal Justice, Criminal Appeals, Transition from Trial Court to Appellate Court, Standard 2.1-2.2 (a) (1980); New York State Bar Assn. Revised Standards for Providing Mandated Representation, I-7(j).
  5.  22 N.Y.C.R.R. § 606.5(b)(l)(“It shall be the duty of. . . counsel to ascertain whether defendant… wishes to appeal and, if so, to serve and file the necessary notice of appeal.”); ABA Standards for Criminal Justice, Defense Function, 4-8.2 (“Defense counsel should take whatever steps are necessary to protect the defendant’s right to appeal.”); Roe v. Flores-Ortega, 528 U.S. 470 (2000) (attorney held ineffective for failing to file a timely notice of appeal upon client’s direction after a guilty plea).
  6.  ABA Defense Function Standards 4-8.2 (b) (1993); ABA Standards for Criminal Justice, Criminal Appeals, Transition from Trial Court to Appellate Court, Standard 21-2.2 (a) (1980).
  7.  See footnotes 2-5, supra.
  8.  Syville, 15 N.Y.3d at 397.
  9.  Exhibit B.
  10.  New York Court of Appeals Rule 500.21(g)(2).
  11.  The New York County Lawyers Association was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence, including through the work of its many committees that provide in-depth analysis and insight into legal practice areas. The views expressed are those of the Appellate Courts Committee only and approved for dissemination by the President; these views have not been approved by the New York County Lawyers Association Board of Directors, and do not necessarily represent the views of the Board.