People v. Becker

163 A.D.2d 916, 559 N.Y.S.2d 844, 1990 N.Y. App. Div. LEXIS 15305

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1990
• Status: Published

Opinion

Motion to extend time to take appeal held, decision reserved, and matter remitted to Cattaraugus County Court for a hearing. Memorandum: Defendant moves pursuant to CPL 460.30 to extend the time to take an appeal from his judgment of conviction. He accuses his attorney of improper conduct in that, at the time defendant was informed of his right to appeal his conviction, he told his attorney that he wanted to appeal and he requested his attorney to file a notice of appeal for him; that his attorney agreed to do so but failed to file and serve the notice of appeal. Defendant’s attorney controverts those accusations, stating that when he advised defendant of his right to appeal, defendant stated that he did not wish to file a notice of appeal. The motion is held and the matter is referred to County Court, Cattaraugus County, to conduct a hearing to determine whether defendant, at the time he was advised of his right to appeal, told his attorney that he wanted to appeal and requested his attorney to file a notice of appeal for him. We suggest that the need for a hearing might have been avoided had a copy of the written notice given to defendant at the time of sentencing contained a statement to be signed by defendant indicating whether he wished to take an appeal (see, 22 NYCRR 1022.11). Present—Callahan, J. P., Denman, Boomer, Green and Lawton, JJ.