New York State Assembly

 
•  Summary 
 
•  Actions 
 
•  Committee Votes 
 
•  Floor Votes 
 
•  Memo 
 
•  Text 
 
•  LFIN 
 
•  Chamber Video/Transcript 

A02653 Summary:

A02653 Actions:

A02653 Committee Votes:

Committee:CODES   Chair:Dinowitz      
DATE:02/09/2021AYE/NAY:21/0  Action: Favorable         
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

A02653 Floor Votes:

A02653 Memo:

NEW 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:

 
                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