senate Bill S4472

2011-2012 Legislative Session

Relates to providing a statutory basis to vacate a judgment of conviction on the ground of ineffective assistance of appellate counsel

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Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 31, 2012 referred to judiciary
delivered to assembly
passed senate
Jan 30, 2012 advanced to third reading
Jan 24, 2012 2nd report cal.
Jan 23, 2012 1st report cal.104
Jan 04, 2012 referred to codes
returned to senate
died in assembly
Jun 15, 2011 referred to codes
delivered to assembly
passed senate
May 09, 2011 advanced to third reading
May 04, 2011 2nd report cal.
May 03, 2011 1st report cal.431
Apr 06, 2011 referred to codes

Votes

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Jan 23, 2012 - Codes committee Vote

S4472
14
1
committee
14
Aye
1
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Codes committee vote details

Codes Committee Vote: Jan 23, 2012

nay (1)
aye wr (1)

May 3, 2011 - Codes committee Vote

S4472
13
2
committee
13
Aye
2
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Codes committee vote details

S4472 - Bill Details

Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Add ยง450.65, CP L

S4472 - Bill Texts

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Relates to providing a statutory basis to vacate a judgment of conviction on the ground of ineffective assistance of appellate counsel.

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BILL NUMBER:S4472

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to providing a
statutory basis to vacate a judgment of conviction on the ground of
ineffective assistance of appellate counsel

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

This measure would codify the writ of coram nobis in a new section
450.65 of the Criminal Procedure Law.

New York did not recognize a procedure to collaterally attack a
judgment of conviction until 1943, when the Court of Appeals
permitted such an attack by resurrecting the "ancient writ of coram
nobis" (see Lyons v Goldstein, 290 NY 19 (1943)). The writ, however,
was of limited availability and applied only to judgments secured by
fraud, duress or mistake, and where the court itself would have
prevented entry of the judgment had it known the truth underlying the
conviction.

In 1970, the Legislature provided defendants with a statutory basis to
vacate a judgment of conviction when it enacted CPL Article 440 and,
by so doing, replaced "all aspects of the common law writs" covered
by the statute (Peter Preiser Practice Commentaries, P 246). Thus, as
of 1970, all writs to vacate a judgment of conviction, including the
writ of coram nobis, disappeared from New York State's jurisprudence.

In People v Bachert, (69 NY2d 593 (1987)), however, the Court of
Appeals revived the writ, this time providing for its use when a
defendant claimed ineffectiveness
of appellate counsel. The Bachert Court held that the Legislature had
never expressly abolished the writ of coram nobis when it enacted
Article 440. Instead, it merely preempted the writ in those areas
specifically covered by Article 440. The Court found that because
ineffective assistance of appellate counsel is not among the eight
grounds for vacating a judgment listed in CPL 440.10, a writ of coram
nobis is an appropriate procedural mechanism for courts to use to
allow for review of such a claim.

By once again resurrecting the writ, however, motions attacking the
effectiveness of appellate counsel fall outside the modern procedural
rules contained in Article 440. For instance, under CPL 440.10(1)(c),
"the court may deny a motion to vacate a judgment when. . . upon a
previous motion made pursuant to this section, the defendant was in a
position adequately to raise the ground or issue underlying the
present motion but did not do so." Without a similar limitation on
writs of coram nobis, defendants routinely file successive writs
attacking the effectiveness of their appellate counsel. Such
successive writs rarely have merit, yet, without a statute expressly
limiting a defendant's successive use of the writ, a defendant may
bring endless successive writs.
For each of these successive writs, prosecutors are required to file


reply briefs and courts are required to review the often frivolous
substantive claims. We believe this is a needless waste of valuable
resources.

This measure would promote the appropriate use of ineffective
assistance of counsel claims by limiting the motion to a single claim
as a matter of right. Second or subsequent motions would still be
permitted where the defendant first obtained leave of a judge of the
intermediate appellate court on a showing of "good cause." The measure
recognizes, however, the potential for injustice that could result if
a defendant's initial pro se claim were denied and if the denial were
used to foreclose an attorney from subsequently raising the issue.
This measure therefore allows an attorney to file an initial motion
attacking the effectiveness of appellate counsel regardless of the
prior pro se motions made by a defendant.

This measure, which would have no meaningful fiscal impact on the
State, would take effect 90 days after it shall have become law.

2010 LEGISLATIVE HISTORY:
OCA 2010-60

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

                                  4472

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 6, 2011
                               ___________

Introduced by Sen. NOZZOLIO -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee on Codes

AN ACT to amend the criminal procedure law, in relation to  providing  a
  statutory  basis  to  vacate a judgment of conviction on the ground of
  ineffective assistance of appellate counsel

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  criminal  procedure  law  is amended by adding a new
section 450.65 to read as follows:
S 450.65 MOTION TO INTERMEDIATE APPELLATE COURT; EFFECTIVE ASSISTANCE OF
           APPELLATE COUNSEL.
  1. AT ANY TIME AFTER THE ENTRY OF  AN  ADVERSE  OR  PARTIALLY  ADVERSE
ORDER OF AN INTERMEDIATE APPELLATE COURT ENTERED UPON AN APPEAL TAKEN TO
SUCH INTERMEDIATE APPELLATE COURT PURSUANT TO SECTION 450.10, 450.15, OR
450.20 OF THIS ARTICLE, THE DEFENDANT MAY MOVE TO SET ASIDE THE ORDER ON
THE  GROUND  OF INEFFECTIVE ASSISTANCE OR WRONGFUL DEPRIVATION OF APPEL-
LATE COUNSEL.
  2. A MOTION MADE PURSUANT TO SUBDIVISION ONE OF THIS SECTION SHALL  BE
MADE  IN  THE SAME INTERMEDIATE APPELLATE COURT THAT HEARD THE APPEAL IN
WHICH COUNSEL WAS ALLEGEDLY DEFICIENT.
  3. A MOTION MADE PURSUANT TO SUBDIVISION ONE OF THIS  SECTION  IS  NOT
AUTHORIZED  AS OF RIGHT WHERE THE GROUND OR ISSUE RAISED UPON THE MOTION
WAS PREVIOUSLY DETERMINED BY THE INTERMEDIATE APPELLATE COURT, PROVIDED,
HOWEVER, THAT THE DEFENDANT MAY APPLY FOR A CERTIFICATE GRANTING PERMIS-
SION TO FILE A SECOND OR SUBSEQUENT MOTION PURSUANT TO  SUBDIVISION  ONE
OF  THIS  SECTION UPON A SHOWING OF GOOD CAUSE, WHICH SHALL INCLUDE, BUT
IS NOT LIMITED TO, ESTABLISHING THAT ANY PREVIOUS MOTION  MADE  PURSUANT
TO  SUBDIVISION  ONE  OF THIS SECTION WAS MADE BY A DEFENDANT ACTING PRO
SE, AND WHERE THE CURRENT APPLICATION IS MADE BY COUNSEL. A  CERTIFICATE
GRANTING PERMISSION TO FILE A SECOND OR SUBSEQUENT MOTION IS AN ORDER OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09804-01-1

S. 4472                             2

ONE  JUDGE  OR  JUSTICE OF THE INTERMEDIATE APPELLATE COURT IN WHICH THE
PREVIOUS MOTION WAS DETERMINED GRANTING SUCH PERMISSION  AND  CERTIFYING
THAT  THE  CASE  INVOLVES  QUESTIONS  OF  LAW  OR FACT WHICH OUGHT TO BE
REVIEWED BY THE INTERMEDIATE APPELLATE COURT.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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