BILL NUMBER:  S335

 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 for a defendant 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 :

2015-2016--S1345
2013-2014 - S.42
2011-12: S.1020
2007-08: S.4667 Advanced to 3rd Reading; A.7599; Passed Assembly and
died in Senate
2005-06: A.8362; Passed Assembly and died in Senate.

 EFFECTIVE DATE :
This act shall take effect immediately.