1.22 - 8. Appellate Preservation Of Right To Counsel (State)

• Jurisdiction: New York

8. Appellate Preservation of Right to Counsel (State)

Right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal. Deprivation of the state constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved by having been specifically raised in a suppression motion or at trial. But such a violation must be established on the face of the record. There must be a factual record sufficient to permit appellate review. The record must conclusively establish the claim’s merit.⁷² “Thus where the record does not make clear, irrefutably, that a right to counsel has occurred, the claimed violation can be reviewed only on a post-trial motion under CPL 440.10, not on direct appeal.”⁷³

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Notes:

^[72] . People v. McLean, 15 N.Y.3d 117, 120–21, 905 N.Y.S.2d 536 (2010).

^[73]...