BILL NUMBER:  S4667

 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, 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 §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 w ill 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.

 LEGISLATIVE HISTORY :  A7599 of 2007-08; Passed Assembly and died in
Senate A8362 of 2005-06; Passed Assembly and died in Senate.

 EFFECTIVE DATE : This act shall take effect immediately.
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).