S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5170

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 10, 2009
                               ___________

Introduced by M. of A. LAVINE -- read once and referred to the Committee
  on Codes

AN  ACT  to  amend  the criminal procedure law, in relation to claims of
  ineffective assistance of counsel in post-conviction motions

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraphs (b) and (c) of subdivision 2 of section 440.10
of the criminal procedure law are amended to read as follows:
  (b)  The judgment is, at the time of the motion, appealable or pending
on appeal, and sufficient facts appear on the record with respect to the
ground or issue raised upon the motion to permit adequate review thereof
upon such an appeal UNLESS THE ISSUE RAISED UPON SUCH MOTION IS INEFFEC-
TIVE ASSISTANCE OF COUNSEL; or
  (c)  Although sufficient facts appear on the record of the proceedings
underlying the judgment to have permitted, upon appeal from  such  judg-
ment,  adequate review of the ground or issue raised upon the motion, no
such appellate review or determination occurred owing to the defendant's
unjustifiable failure to take or perfect an appeal during the prescribed
period or to his OR HER unjustifiable failure to raise  such  ground  or
issue  upon  an appeal actually perfected by him OR HER UNLESS THE ISSUE
RAISED UPON SUCH MOTION IS INEFFECTIVE ASSISTANCE OF COUNSEL; or
  S 2. This act shall take effect immediately.




 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08768-01-9