- Summary
- Actions
- Committee Votes
- Floor Votes
- Memo
- Text
- LFIN
- Chamber Video/Transcript
A02653 Summary:
BILL NO | A02653 |
  | |
SAME AS | SAME AS S01217 |
  | |
SPONSOR | Lavine |
  | |
COSPNSR | Gottfried, Vanel |
  | |
MLTSPNSR | |
  | |
Amd 440.10, 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. |
A02653 Actions:
BILL NO | A02653 | |||||||||||||||||||||||||||||||||||||||||||||||||
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01/19/2021 | referred to codes | |||||||||||||||||||||||||||||||||||||||||||||||||
02/09/2021 | reported | |||||||||||||||||||||||||||||||||||||||||||||||||
02/11/2021 | advanced to third reading cal.105 | |||||||||||||||||||||||||||||||||||||||||||||||||
02/23/2021 | passed assembly | |||||||||||||||||||||||||||||||||||||||||||||||||
02/23/2021 | delivered to senate | |||||||||||||||||||||||||||||||||||||||||||||||||
02/23/2021 | REFERRED TO CODES | |||||||||||||||||||||||||||||||||||||||||||||||||
06/07/2021 | SUBSTITUTED FOR S1217 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/07/2021 | 3RD READING CAL.1214 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/07/2021 | PASSED SENATE | |||||||||||||||||||||||||||||||||||||||||||||||||
06/07/2021 | RETURNED TO ASSEMBLY | |||||||||||||||||||||||||||||||||||||||||||||||||
10/13/2021 | delivered to governor | |||||||||||||||||||||||||||||||||||||||||||||||||
10/25/2021 | signed chap.501 |
A02653 Committee Votes:
Dinowitz | Aye | Morinello | Aye | ||||||
Pretlow | Aye | Giglio | Aye | ||||||
Cook | Aye | Montesano | Aye | ||||||
Cymbrowitz | Aye | Reilly | Aye | ||||||
O'Donnell | Aye | Mikulin | Aye | ||||||
Lavine | Aye | Tannousis | Aye | ||||||
Perry | Aye | ||||||||
Abinanti | Aye | ||||||||
Weprin | Aye | ||||||||
Hevesi | Excused | ||||||||
Fahy | Aye | ||||||||
Seawright | Aye | ||||||||
Rosenthal | Aye | ||||||||
Walker | Aye | ||||||||
Vanel | Aye | ||||||||
Cruz | Aye | ||||||||
Go to top
A02653 Floor Votes:
Yes
Abbate
Yes
Clark
Yes
Frontus
Yes
Lalor
Yes
Paulin
Yes
Sillitti
Yes
Abinanti
Yes
Colton
Yes
Galef
Yes
Lavine
Yes
Peoples-Stokes
Yes
Simon
Yes
Anderson
Yes
Conrad
Yes
Gallagher
Yes
Lawler
Yes
Perry
Yes
Simpson
Yes
Angelino
Yes
Cook
Yes
Gallahan
Yes
Lemondes
Yes
Pheffer Amato
Yes
Smith
Yes
Ashby
Yes
Cruz
Yes
Gandolfo
Yes
Lunsford
Yes
Pichardo
Yes
Smullen
Yes
Aubry
Yes
Cusick
Yes
Giglio JA
Yes
Lupardo
Yes
Pretlow
Yes
Solages
Yes
Barclay
Yes
Cymbrowitz
Yes
Giglio JM
Yes
Magnarelli
Yes
Quart
Yes
Steck
Yes
Barnwell
Yes
Darling
Yes
Glick
Yes
Mamdani
Yes
Ra
Yes
Stern
Yes
Barrett
Yes
Davila
Yes
Gonzalez-Rojas
Yes
Manktelow
Yes
Rajkumar
Yes
Stirpe
Yes
Barron
Yes
De La Rosa
Yes
Goodell
Yes
McDonald
Yes
Ramos
Yes
Tague
Yes
Benedetto
Yes
DeStefano
Yes
Gottfried
Yes
McDonough
Yes
Reilly
Yes
Tannousis
Yes
Bichotte Hermel
Yes
Dickens
Yes
Griffin
Yes
McMahon
Yes
Reyes
Yes
Taylor
Yes
Blankenbush
Yes
Dilan
Yes
Gunther
Yes
Meeks
Yes
Richardson
Yes
Thiele
Yes
Brabenec
Yes
Dinowitz
Yes
Hawley
Yes
Mikulin
Yes
Rivera J
Yes
Vanel
Yes
Braunstein
Yes
DiPietro
Yes
Hevesi
Yes
Miller B
Yes
Rivera JD
Yes
Walczyk
Yes
Bronson
Yes
Durso
Yes
Hunter
Yes
Miller M
Yes
Rodriguez
Yes
Walker
Yes
Brown
Yes
Eichenstein
Yes
Hyndman
Yes
Mitaynes
Yes
Rosenthal D
Yes
Wallace
Yes
Burdick
Yes
Englebright
Yes
Jackson
Yes
Montesano
Yes
Rosenthal L
Yes
Walsh
Yes
Burgos
Yes
Epstein
Yes
Jacobson
Yes
Morinello
Yes
Rozic
Yes
Weinstein
Yes
Burke
Yes
Fahy
Yes
Jean-Pierre
Yes
Niou
Yes
Salka
Yes
Weprin
Yes
Buttenschon
Yes
Fall
Yes
Jensen
Yes
Nolan
Yes
Santabarbara
Yes
Williams
Yes
Byrne
Yes
Fernandez
Yes
Jones
Yes
Norris
Yes
Sayegh
Yes
Woerner
Yes
Byrnes
Yes
Fitzpatrick
Yes
Joyner
Yes
O'Donnell
Yes
Schmitt
Yes
Zebrowski
Yes
Cahill
Yes
Forrest
Yes
Kelles
Yes
Otis
Yes
Seawright
Yes
Zinerman
Yes
Carroll
Yes
Friend
Yes
Kim
Yes
Palmesano
Yes
Septimo
Yes
Mr. Speaker
‡ Indicates voting via videoconference
A02653 Memo:
Go to topNEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)   BILL NUMBER: A2653 SPONSOR: Lavine
  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 other- wise 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, be court must deny a motion to vacate a judg- ment 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" CFL 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 jurisdic- tions, 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, 533 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 pred- icate," 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 to 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 appli- cable in New York's statutory scheme. New York courts already have emphasized that, in typical cases, ineffec- tive 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 explora- tion 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 ineffective- ness 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 disposi- tion 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 encour- age 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: 2017-18 A7621/S335 Passed Assembly/ CODES 2015-2016--S1345 2013-2014 - S.42 2011-12: S.1020 2007-08:S.4667 Advanced to 3rd Reading;A.7599; Passed Assembly died in Senate 2005-06: A.8362; Passed Assembly and died in Senate.   EFFECTIVE DATE: This act shall take effect immediately.
A02653 Text:
Go to top STATE OF NEW YORK ________________________________________________________________________ 2653 2021-2022 Regular Sessions IN ASSEMBLY January 19, 2021 ___________ Introduced by M. of A. LAVINE, GOTTFRIED -- 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 § 2. This act shall take effect immediately. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04946-01-1