BILL NUMBER:  S7246                 Revised 04/14/16

 TITLE OF BILL :

An act to amend the criminal procedure law, in relation to granting a
defendant poor person relief on appeal

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.

This measure would add a new section 380.55 to the Criminal Procedure
Law that would authorize a trial court to grant poor person status for
assignment of appellate counsel at the time of sentence. The authority
to assign specific counsel will continue to reside in the appellate
court. Where the trial court declines to grant an application, the
defendant would still be permitted to make a traditional application
for poor person relief to the appellate court.

Under current law, the application for poor person relief must be made
to the court where the appeal is to be taken (See e.g., CPLR 1101).
There are several notable exceptions. For instance, where a sex
offender has been granted poor person status for SORA proceedings, the
Correction Law provides that the assignment of counsel continues
through any appeal (Correction Law § 168-n). Moreover, in Family Court
cases, where a respondent has assigned counsel, so long as respondent
              

continues to be indigent. no motion for assignment of counsel for any
appeal is required (FCA § 1118). In federal appeals, the motion for
assigned counsel on appeal is made to the trial court (Fed. R. App.
Proc. Rule 24).

Our Advisory Committee believes that the trial judge is ordinarily in
the best position to know whether a defendant is eligible for poor
person status, having already ruled on the issue in many cases for
purposes of assigning trial counsel. As a practical matter, a criminal
defendant's financial condition rarely improves between arrest and
conviction, and thus he or she is rarely able to hire appellate
counsel after being convicted and sentenced. Moreover, by entertaining
the application at the time of sentence, the trial court can eliminate
needless delay and institutional expense caused by requiring defendant
to make a subsequent application for poor person relief in the
appellate court. Although by this measure the trial court would not be
required to hear the application for poor person relief, if a
defendant is represented by assigned counsel at the time of
conviction, the court would have the discretion to entertain the
application.

This measure will help streamline the delivery of indigency services
in New York. Under current rules, assigned trial counsel is not
authorized to represent a convicted defendant on appeal, except to the
extent of filing a notice of appeal. Therefore, it falls on the
defendant, acting pro se, to file the application for poor person
relief with the appropriate appellate court, using the correct forms
and following the correct procedures. Indigent defendants usually have
no legal training. are often homeless and may have significant mental
health issues. As a result, initial applications by indigent
defendants are often deficient. After review. the appellate court must
return the application to the pro se defendant with an explanation of
the deficiency. This leads to repeated applications that are
frequently rejected several times before submission of an application
that can be properly considered. The current process therefore
needlessly consumes scarce court resources and ultimately adds
significant delay to many appeals.

This measure adds a new section 380.55 to the Criminal Procedure Law
and provides the trial court with discretion to hear an application
for poor person relief at the time of sentencing a defendant. The
authority is limited to cases where defendant is already represented
by assigned counsel and the application requires assigned counsel to
represent to the court that defendant has insufficient funds to retain
counsel on appeal. If the trial court grants the application.  it is
required to issue a written order that must be sent to the appropriate
appellate court. Finally, the measure provides that if the trial court
denies the application, the defendant would have the option to make a
formal application to the appropriate appellate court under current
procedures.

This measure, which would streamline the process and save court
resources, would take effect immediately.

 2016 LEGISLATIVE HISTORY :

Senate 7246 (Senator DeFrancisco) (ref to Codes) Assembly 9522 (M. of
A. Richardson) (PASSED)