A02442 Summary:

BILL NO    A02442 

SAME AS    SAME AS S00042

SPONSOR    Lavine

COSPNSR    

MLTSPNSR   

Amd S440.10, CP L

Permits 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.
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A02442 Actions:

BILL NO    A02442 

01/15/2013 referred to codes
01/08/2014 referred to codes
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A02442 Votes:

There are no votes for this bill in this legislative session.
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A02442 Memo:

BILL NUMBER:A2442

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

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure. 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.

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, 123 S. Ct. 1690 (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. At 1694. 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 trial court is, "the forum best
suited to developing the facts necessary to determining the adequacy of
representation during an entire trial" Id. In addition, the collateral
motion "often will be ruled upon by the judge who presided at trial, who


should have an advantageous perspective for determining the
effectiveness of counsel's conduct and whether any deficiencies were
prejudicial" 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, than
an appellate attack on the effectiveness of counsel be bottomed on an
evidentiary exploration by collateral or post-conviction proceeding
brought under CPL S440.10"). 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 fora
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.

EFFECTIVE DATE: Immediate upon enactment

Legislative History:


A8362 of 2005-06; A7599 passed in Assembly 6/21/07 and died in Senate.
As A5170, passed in Assembly 5/26/09 and died in Senate. Passed in
Assembly 3/23/10

Footnote:
{1} The prohibition on collateral review established by these two
provisions of section 440.10(2) currently includes ineffective
assistance claims that are based on facts appearing in the trial record.
See, e.g., People v. Allen, 285 A.D.2d 470 (2d Dept., 2001).
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A02442 Text:

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

                                         2442

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                   January 15, 2013
                                      ___________

       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:

    1    Section  1.  Paragraphs (b) and (c) of subdivision 2 of section 440.10
    2  of the criminal procedure law, paragraph (b) as amended by  chapter  332
    3  of the laws of 2010, are amended to read as follows:
    4    (b)  The judgment is, at the time of the motion, appealable or pending
    5  on appeal, and sufficient facts appear on the record with respect to the
    6  ground or issue raised upon the motion to permit adequate review thereof
    7  upon such an appeal UNLESS THE ISSUE RAISED UPON SUCH MOTION IS INEFFEC-
    8  TIVE ASSISTANCE OF COUNSEL.  This paragraph shall not apply to a  motion
    9  under paragraph (i) of subdivision one of this section; or
   10    (c)  Although sufficient facts appear on the record of the proceedings
   11  underlying  the  judgment to have permitted, upon appeal from such judg-
   12  ment, adequate review of the ground or issue raised upon the motion,  no
   13  such appellate review or determination occurred owing to the defendant's
   14  unjustifiable failure to take or perfect an appeal during the prescribed
   15  period  or  to  his OR HER unjustifiable failure to raise such ground or
   16  issue upon an appeal actually perfected by him OR HER UNLESS  THE  ISSUE
   17  RAISED UPON SUCH MOTION IS INEFFECTIVE ASSISTANCE OF COUNSEL; or
   18    S 2. This act shall take effect immediately.



        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00347-01-3
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