Notice of Appearance: How Discovery Reform makes this little known regulation relevant

Hidden in the riches of the Uniform Rules For Courts Exercising Criminal Jurisdiction(yes they exist), is a requirement that counsel in any criminal matter file a written notice of appearance on or before the Attorney’s first appearance.  (22 NYCRR 200.5).

Section 200.5 Appearance of counsel in criminal actions.

Each attorney appearing in a criminal action is required to file a written notice of appearance on or before the time of the attorney’s first appearance in court or not later than 10 days after appointment or retainer, whichever is sooner. The notice shall contain the attorney’s name, office address and telephone number, the name of the person on whose behalf he or she is appearing, and the identification number of the accusatory instrument or instruments by which such person is charged. 22 NYCRR 200.5

There is no penalty imposed upon counsel or the client if you fail to file one.  Most criminal lawyers would snicker at the prospect of compliance in lower level cases in particular.  Even experienced advocates may not have known it existed until the Chief Judge’s Order to Counsel in Criminal Cases referenced it. On page two, the order starts with, “Defense Counsel, having filed a notice of appearance….”

Yeah, you’re not alone in having a moment of concern here. Most people don’t file one of these. And for now, there’s not much danger to that.

Filing this notice has always had practical benefits.  Nothing tells a client you’re in new territory quite like the experience of having a judge ask you to spell your name (two C’s, one R), especially after you’ve assured the client of your years of experience in this court. Filing this notice, avoids that.  It also allows prosecutors to reach out to you in advance of your initial appearance to discuss the case.

But changes to the discovery statutes in January make an appearance notice even more important. Under Sections 245.20(1) and 245.10(1)(a), the timeline for the Government’s compliance with CPL 245 starts at the defendant’s firsts appearance. Within 15 days of arraignment, the Government is required* to provide a wide array of discovery materials. 

A demand letter does not trigger this obligation, the statute does.  The problem now is that an erstwhile  prosecutor may do her due diligence, assemble all of the materials mandated, only to find that they have no idea where they are sending it.  

Courts often, but do not always, find out which attorney has been assigned to a case.  This varies by court, but even then, a prosecutor reaching out to a court and getting a response may not be feasible.  

So if you really want your discovery in a timely manner, send a notice of appearance of counsel. You may be wise to clarify that you are not filing a motion for relief (or risk some silly claim you’ve paused the 30.30 clock by filing a motion), but providing a notice of appearance with all of your contact data via fax seems like a smart way to ensure you get timely discovery and circumvent any claim by the Prosecutor that they had no way of knowing who should get the discovery. 

If you’re thinking “I’ve heard they can’t declare readiness under CPL 30.30 until they’ve complied, so why help them declare readiness?” Think again.

The New Law allows the DA to move for Good cause for a delay, and presumably, a lack of counsel may be good cause.  CPL 245.70(2). Alternatively, in order to certify compliance and declare readiness, the DA could also serve the Discovery upon the defendant, which ensures that no one will ever see it again.

You might consider including our “Brady” demand on the DA at the same time since nothing in the new statutes removes your obligation to make specific demands on the DA for that information.

Or course, there are a number of ways the system may deal with this.  Courts may receive and forward assignment lists to the District Attorney for example, but given the current regulations put the obligation on counsel to provide notice of appearance, it seems likely that the burden will, at least initially, fall to defense counsel.

*-  There are loopholes.  Lots and lots of loopholes.