BILL NUMBER:S1020                REVISED 01/11/12

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to claims of ineffective
assistance of counsel in post-conviction motions

PURPOSE:
This bill would permit the court to grant post-conviction motions
to vacate a judgment when the issue
raised upon such motion is ineffective assistance of counsel in
certain cases in which the court would otherwise be required to
deny the motion.

SUMMARY OF PROVISIONS:
This measure would amend paragraphs (b) and (c) of subdivision two
of section 440.10 of the Criminal Procedure Law to provide that
ineffective assistance of counsel claims shall be exempt from the
procedural bars to collateral review imposed by these two
provisions of the post-conviction motion statute.

JUSTIFICATION:
Although CPL section 440.10(1)(h) allows generally to challenge
the constitutionality of his or her
conviction on collateral review, subdivision two of the statute
establishes
              

a number of mandatory procedural bars to such claims.  Specifically,
pursuant to subdivision (2)(b) of section 440.10, the court must
deny a motion to vacate a judgment under that section when "the
judgment is, at the time of the motion, appealable or pending
on appeal, and sufficient facts appear upon the record with
respect to the ground or issue raised upon the motion to permit
adequate
review thereof upon such an appeal" CPL 440.10(2)(b).  And, under
CPL 440.10(2)(c),the court must deny such motion
when; "although sufficient facts appear on the record of the
proceedings underlying the judgment to have permitted, upon appeal
from such judgment, 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 effect an appeal
during the prescribed period or to his unjustifiable failure to raise
such ground or issue upon an appeal actually perfected by him." CPL
440.10(2)(c).(1).

The underlying purpose of subdivisions 2(b) and 2(c) is to prevent a
defendant from using section 440.10 of the CPL as a substitute for
direct appeal. See, People v. Cook, 67 N.Y.2d 100 (1986). Many
jurisdictions, including the federal system, have analogous
procedural bars.
According to the United States Supreme Court, such rules are intended
"to conserve judicial resources and to respect the law's important

interest in the finality of judgments. "Massaro v.
United States, 538 U.S. 500, 504 (2003). But, as the Supreme Court
recognized in exempting ineffective assistance claims from the
federal judiciary's similar procedural bar, requiring a criminal
defendant to bring ineffective assistance claims on direct appeal
"does not promote these objectives." Id. Applying the procedural bar
to ineffective assistance claims creates a "risk that defendants will
feel compelled to raise the issue before there has been an
opportunity fully to develop the claim's factual predicate," and the
issue will "be raised for the first time in a forum not best suited
to assess those facts." Id.  As the
Supreme Court further explained, "when an ineffectiveness claim is
brought on direct appeal, appellate counsel and the court must proceed
on a trial record that is not developed precisely for the purpose of
litigating or preserving the claim and thus often incomplete or
inadequate for this purpose." Id.

The Supreme Court's reasons for exempting ineffective assistance
claims from its equivalent procedural bar are equally applicable in
New York's statutory scheme. New York courts already have emphasized
that, in typical cases, ineffective assistance claims should be
raised on collateral review. See, e.g., People v. Brown, 45 N.Y. 2d
852 (1978)("in the typical case, it would be better, and in some
cases essential, that an appellate attack on the effectiveness of
counsel be bottomed on an evidentiary exploration by collateral or
post-conviction proceeding brought under CPL §440. 10"). However,
notwithstanding this seemingly broad language, it is far from unheard
of for a court to deny the CPL 440.10 application on the premise that
the trial record was adequate to permit raising the claim on appeal.
See, e.g., People v. Duver, 294 A.D.
2d 594 (2d Dept., 2002); People v. Cardenas, 4 A.D. 2d 103 (2d Dept.,
2004). Prohibiting a defendant from collaterally raising an
ineffective assistance claim that potentially falls within the narrow
class of directly appealable ineffectiveness claims imposes
unnecessary burdens on defendants and on the judicial system.
Importantly, it is often difficult for a defendant to predict whether
a given court will categorize his or her ineffectiveness claim as
cognizable on direct appeal.

This creates a dilemma for a defendant who plans to press an
ineffective assistance claim. If the defendant raises the claim on
collateral review, there is a risk that the trial court will deny his
or her claim under the mandatory procedural bars - the defendant then
will only be able to raise the claim on direct appeal if the
appellate court has agreed to delay the perfection of his or her
appeal until the disposition of the 440.10 motion, and if the
appellate court agrees with the trial court's determination that the
claim is cognizable on appeal. If, on the other hand, the defendant
raises the claim first on direct appeal, there is a risk that the
appellate court will decide that the claim is not cognizable on
direct appeal - in that situation, the defendant will have had to
complete the entire appellate process before getting to raise a claim

that could have obviated the need for an appeal in the first place.
If the defendant raises the claim in both forums simultaneously, he
or she runs the greatest risk of all - losing on procedural grounds
in two courts without any adjudication of the merits of the claim.

Following the lead of the federal system and the majority of other
states, this measure would amend subdivision two of section 440.10 of
the CPL to remove the existing bars to collateral review where the
claim is the ineffective assistance of counsel. In so doing, it would
encourage these claims to be brought in the preferable forum in the
first instance, would help to eliminate the potential injustices to
defendants outlined above, and would help to prevent unnecessary, or
unduly delayed, appeals in these cases.

LEGISLATIVE HISTORY:
S.4667 Advanced to 3rd Reading;
A.7599 of 2007-08; Passed Assembly and Died in Senate
A.8362 of 2005-06; Passed Assembly and Died in Senate.

EFFECTIVE DATE:
This act shall take effect immediately.