BILL NUMBER: S3672

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the county law, in relation to assignment of counsel

 
PURPOSE OF GENERAL IDEA OF BILL:

The bill enhances efficiency in appellate practice in criminal cases by
expressly authorizing appellate counsel to prepare post-conviction
motions, addressed to the trial court, as a part of such representation.

 
SUMMARY OF SPECIFIC PROVISIONS:

The bill amends section 722 of the County Law, which in criminal cases
provides for appointed counsel on appeal for persons unable to afford
representation. The bill references post-trial motions and provides that
appellate counsel's representation may include the preparation and
proceedings on such motions. When representation by the appointed appel-
late attorney would be inappropriate, such as when ineffectiveness of
              

representation is raised as an issue, counsel would be appointed by the
administrator of the assigned counsel plan in operation in the jurisdic-
tion.

 
JUSTIFICATION:

The bill would bring needed efficiencies to the appellate process.
Under current law, counsel is appointed for the appeal, but frequently
there are meritorious issues that do not appear on the record of the
proceedings before the trial court. Often, these issues require consid-
eration of additional facts. But appellate courts are not equipped to
hear witnesses or receive off-the-record evidence.  The result is some-
times long delays and a two-step process: first "direct" appellate
review, handled by appointed counsel and -- usually later -- a "collat-
eral" review process, which itself may be subject to appellate consider-
ation.

The bill provides that representation provided by an attorney assigned
to an appeal includes representation with respect to any post-conviction
motion. associated with the case. In this manner, legal issues appropri-
ate for review can be presented and considered earlier -- and comprehen-
sively. The piece-meal approach that often results under current law
would be largely avoided.

The bill would also address an unjust and nonsensical dichotomy that
arises under current law. Institutional providers (such as larger Legal
Aid societies and public defender off ices)- are funded by annual appro-
priations. Their staffs are generally salaried employees. Attorneys in
these offices are more likely to consider post-conviction motions part
of their appellate representation and file such motions when needed.*
Assigned counsel, on the other hand, are paid by the hour.  County Law §
722 does not expressly provide for hourly compensation for these
motions. The result is that under current law, whether.pecpssary post-
conviction motions are made or not often depends on th4 4mOjyment status
of the appointed lawyer (institutional vs. private/ assigned), rather
than the merits of the motion.


The bill language is limited in scope. It applies only in instances
where there is a direct appeal pending and the post-conviction motion.
concerns the judgment on appeal.

Finally, in some instances, a post-conviction motion addresses the
adequacy of the representation provided by a particular attorney or law
office in the trial court. When appellate counsel was the trial lawyer,
or works for the same law office, a conflict of interest may arise. In
such instances, under the bill language, the administrator of the
assigned counsel plan for the jurisdiction would appoint another attor-
ney to represent the defendant.

 
PRIOR LEGISLATIVE HISTORY:

2017-18 - A.8465 (Cook)

 
FISCAL IMPLICATIONS:

There are no additional costs to the state. Counties may experience some
additional cost for assigned counsel's preparation of post-conviction
motions, **but these would be largely offset by savings and efficiencies
gained by having these motions considered earlier (as a part of the
direct appeal process) and by the opportunity for consolidated appeals.

 
EFFECTIVE DATE:
The bill would take effect immediately.  *These motions are rare. A New
York City study found that, over a five year period, a C.P.L. Art. 440
motion was filed in only 2.4% of the cases assigned to these organiza-
tions. "Report of the Criminal Justice Operations Committee ..."), Asso-
ciation of the Bar of the City of New York (Jan. 2011) at 1. Many of
these motions raised only a claim concerning the legality of the
sentence (so CPL 440.20), which is generally a straightforward and rela-
tively simple motion to prepare. Id. **Note that County Law § 722 (4)
already provides for the payment of costs after "a hearing has been
ordered in a proceeding upon a motion, pursuant to article four hundred
forty of the criminal procedure law, to vacate a judgment or to set
aside a sentence."