S T A T E O F N E W Y O R K
________________________________________________________________________
1135
2011-2012 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 5, 2011
___________
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:
Section 1. Paragraphs (b) and (c) of subdivision 2 of section 440.10
of the criminal procedure law, paragraph (b) as amended by chapter 332
of the laws of 2010, are amended to read as follows:
(b) The judgment is, at the time of the motion, appealable or pending
on appeal, and sufficient facts appear on the record with respect to the
ground or issue raised upon the motion to permit adequate review thereof
upon such an appeal UNLESS THE ISSUE RAISED UPON SUCH MOTION IS INEFFEC-
TIVE ASSISTANCE OF COUNSEL. This paragraph shall not apply to a motion
under paragraph (i) of subdivision one of this section; or
(c) Although sufficient facts appear on the record of the proceedings
underlying the judgment to have permitted, upon appeal from such judg-
ment, 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 perfect an appeal during the prescribed
period or to his OR HER unjustifiable failure to raise such ground or
issue upon an appeal actually perfected by him OR HER UNLESS THE ISSUE
RAISED UPON SUCH MOTION IS INEFFECTIVE ASSISTANCE OF COUNSEL; or
S 2. This act shall take effect immediately.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05132-01-1