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SECTION 35-B
Assignment of counsel and related services in criminal actions in which a death sentence may be imposed
Judiciary (JUD) CHAPTER 30, ARTICLE 2
§ 35-b. Assignment of counsel and related services in criminal actions
in which a death sentence may be imposed. 1. Notwithstanding any other
provision of law to the contrary, in every criminal action in which a
defendant is charged with murder in the first degree as defined in
section 125.27 of the penal law, or in any criminal action in which a
defendant is charged with murder in the second degree as defined in
section 125.25 of the penal law and the district attorney confirms upon
inquiry by the court that the district attorney is undertaking an
investigation to determine whether the defendant can or should be
charged with murder in the first degree as defined in section 125.27 of
the penal law and the court determines that there is a reasonable
likelihood the defendant will be so charged, if the defendant is or
becomes financially unable to obtain adequate representation or
investigative, expert or other reasonably necessary services at any time
either (a) prior to judgment, or (b) after the entry of a judgment
imposing a sentence of death but before final resolution of a direct
appeal pursuant to subdivision one of section 450.70 of the criminal
procedure law and of an appeal pursuant to subdivision two or three of
section 450.70 of the criminal procedure law from an order denying an
initial post judgment motion pursuant to section 440.10 or 440.20 of the
criminal procedure law, the defendant shall be entitled to the
appointment of counsel and investigative, expert and such other
reasonably necessary services in accordance with the provisions of this
section. Prior to the appointment of counsel pursuant to this section,
the court shall determine whether the defendant is or has become
financially unable to obtain adequate representation. In the event such
defendant seeks to file any subsequent motion, he or she shall not be
eligible for the appointment of counsel pursuant to this section.

2. The appointment of counsel shall be made by the trial court if made
prior to the entry of a judgment including a sentence of death or by the
court of appeals, except as otherwise provided in this subdivision, if
made after the entry of a judgment including a sentence of death. With
respect to counsel at trial and at a separate sentencing proceeding, the
court shall appoint two attorneys, one to be designated "lead" counsel
and the other to be designated "associate" counsel. The appointment of
any such counsel shall be made from a list of four proposed teams of
qualified lead and associate counsel provided to the appropriate court
by the capital defender office. Alternatively, the court may, with the
consent of the capital defender office, appoint the office to represent
the defendant. At least one of the proposed teams of qualified lead and
associate counsel on any list submitted pursuant to this subdivision
shall regularly practice within the judicial department in which the
defendant has been charged. With respect to a jurisdiction in which the
capital defender office has entered into an agreement to provide
representation with a legal aid society, office of public defender or
other not-for-profit organization providing criminal defense services,
the capital defender office may designate the society, public defender
or organization for appointment as counsel pursuant to this section and
need not submit a list of four proposed teams of qualified lead and
associate counsel for appointment. In the event that counsel is not
appointed pursuant to the foregoing provisions of this subdivision, the
court may appoint any attorney whose name appears on a roster
established pursuant to subdivision five of this section for appointment
as lead or associate counsel. In the event no such attorney is
available, the court may appoint an attorney eligible for appointment
pursuant to article eighteen-B of the county law who is competent to
represent defendants charged with murder and other serious felonies.
With respect to an appeal from a judgment including a sentence of death,
the court of appeals shall assign lead counsel only, but for good cause
shown, the court may assign associate counsel. With respect to an
initial motion pursuant to section 440.10 or 440.20 of the criminal
procedure law, and any appeal therefrom, the appropriate court shall
assign lead counsel only. The trial court shall assign counsel in
connection with such a motion and the court of appeals shall assign
counsel in connection with any appeal therefrom.

3. There is hereby created a capital defender office, to be governed
by a three member board of directors. No attorney who is employed as a
judge, prosecutor or in a law enforcement capacity shall be eligible to
serve on such board. The board members shall be appointed in the
following manner: one member shall be appointed by the chief judge of
the court of appeals, one member shall be appointed by the temporary
president of the senate and one member shall be appointed by the speaker
of the assembly. Each member shall be appointed to serve a three year
term and vacancies shall be filled in the same manner as the original
appointment. Members of the board shall receive no compensation but
shall be reimbursed all reasonable and necessary expenses incidental to
their duties.

4. Within the amounts appropriated therefor:

(a) The board of directors shall have the authority to appoint a
capital defender, who shall have the authority in consultation with the
board of directors to hire attorneys as deputy capital defenders,
investigators and such other staff as the capital defender and the board
of directors deem necessary to effectuate the purposes of the capital
defender office.

(b) The capital defender office shall be authorized as follows:

(i) Upon appointment in accordance with the provisions of this
section, to act as counsel for defendants and to furnish such
investigative, expert and other reasonably necessary services as the
capital defender deems appropriate;

(ii) To provide legal or other advice or, to the extent not otherwise
available, any other assistance to counsel appointed pursuant to this
section;

(iii) To provide investigative, expert or other reasonably necessary
services to defendants charged with murder in the first degree who are
not represented by the capital defender office, provided that such
defendants (A) are or have become financially unable to obtain adequate
investigative, expert or other reasonably necessary services and are
represented by counsel appointed pursuant to this section, and (B) have
obtained pursuant to this section the approval of a trial court for the
same investigative, expert or other reasonably necessary services,
provided, however, that such defendants have not received such services
from other sources;

(iv) To determine, in consultation with the administrative board of
the judicial conference, proposed minimum standards for lead and
associate counsel in capital cases. In determining the minimum
standards, the capital defender office in consultation with the
administrative board of the judicial conference shall consider among
other factors both the needs of the state for an adequate number of
attorneys to represent defendants in capital cases and the needs of
defendants in capital cases for competent counsel. The minimum
standards, and any modifications thereto which the capital defender
office in consultation with the administrative board of the judicial
conference may from time to time propose, shall be submitted for
approval to the court of appeals. Prior to approving the minimum
standards and any modifications thereto the court shall invite the
submission of written comments from interested parties;

(v) To provide continuing legal education, training, advice and
assistance to attorneys representing or seeking to represent defendants
in capital cases; and

(vi) To enter into an agreement with a legal aid society, office of
public defender or other not-for-profit organization providing criminal
defense services to designate and provide counsel pursuant to this
section. Any agreement shall require that the society, public defender
or organization effectuate the purposes and provisions of this section
and may be terminated by the capital defender office by serving notice
on the society, public defender or organization sixty days prior to the
effective date of termination. Upon the termination of any agreement,
the representation provided by the society, public defender or
organization shall continue until the proceeding is concluded or the
court relieves the society, public defender or organization and appoints
successor counsel pursuant to this section. The capital defender office
may require such reports as it deems necessary in connection with such
agreement and shall monitor compliance with its terms. A society,
public defender or organization which enters into an agreement pursuant
to this section shall not be the exclusive provider of counsel within
such society's, public defender's or organization's jurisdiction. In
the event that a defendant is not represented by such a society, public
defender or organization due to a conflict, counsel shall be appointed
in accordance with the provisions of subdivision two of this section.

5. (a) A screening panel shall be established in each judicial
department consisting of four members, two of whom shall be appointed by
the board of directors of the capital defender office and two of whom
shall be appointed by the presiding justice of each judicial department.
Each screening panel shall establish and periodically update a roster of
attorneys qualified for appointment as lead counsel or associate counsel
pursuant to the provisions of this section. The capital defender
office, in consultation with the administrative board of the judicial
conference, shall promulgate regulations to provide that qualified
attorneys whose names appear on such rosters and who wish to be
appointed to represent defendants in capital cases, are given fair
opportunity to receive such appointments. Each screening panel shall
also promulgate and periodically update, in consultation with the
administrative board of the judicial conference, a schedule of fees to
be paid attorneys pursuant to this section in each department, which
schedule shall be subject to the approval of the court of appeals. Prior
to approving fee schedules, the court shall invite the submission of
written comments from interested parties. Fee schedules shall be
promulgated and approved after reviewing the rates of compensation
generally paid in the department to attorneys with substantial
experience in the representation of defendants charged with murder or
other serious felonies, and shall be adequate to ensure that qualified
attorneys are available to represent defendants eligible to receive
counsel pursuant to this section.

(b) Each appellate division, in consultation with the screening panel,
shall establish the rates of fees and expenses to be paid for expert,
investigative and other reasonably necessary services pursuant to this
section.

6. (a) When a defendant has been charged in an accusatory instrument
with murder in the first degree as defined in section 125.27 of the
penal law or with murder in the second degree as defined in section
125.25 of the penal law, the district attorney shall notify the capital
defender office.

(b) The clerk of the superior court wherein a judgment that includes a
sentence of death has been entered and the clerk of the court of appeals
upon an order affirming a judgment that includes a sentence of death
shall notify the capital defender office of the judgment or order.
Notice need not be given when the defendant has retained counsel of his
or her own choosing or when appellate or post-conviction counsel has
already been appointed pursuant to this section and when counsel advises
that he or she will continue to act on the defendant's behalf.

(c) Notice to the capital defender office required pursuant to
paragraph (a) or (b) of this subdivision shall consist of telephone,
facsimile, E-mail or other prompt electronic means of notification
forthwith, which shall be followed by first class mail notification
within two business days of the charge, sentence or affirmance. The
failure to give notice shall not affect the validity of any indictment,
conviction, judgment or order.

7. Whenever a defendant is charged with murder in the first degree, or
a defendant has been charged with murder in the second degree as defined
in section 125.25 of the penal law and the court determines after
confirmation by the district attorney pursuant to subdivision one of
this section that there is a reasonable likelihood the defendant will be
charged with murder in the first degree and the defendant is financially
unable to obtain counsel as determined by the court and an attorney has
not yet been appointed to represent such defendant pursuant to the
provisions of this section, the capital defender office may provide or
arrange to provide temporary legal representation to the defendant. No
arraignment shall be delayed on account of any representation to be
provided or arranged pursuant to this subdivision. Any temporary
representation provided pursuant to this subdivision shall cease upon
the court's appointment of an attorney pursuant to this section.

8. Whenever prior to entry of judgment a defendant is charged with
murder in the first degree, or a defendant has been charged with murder
in the second degree as defined in section 125.25 of the penal law and
the court determines after confirmation by the district attorney
pursuant to subdivision one of this section that there is a reasonable
likelihood the defendant will be charged with murder in the first
degree, and the defendant is or becomes financially unable, as
determined by the court, to obtain adequate investigative, expert or
other reasonably necessary services and the court has not appointed the
capital defender office to represent the defendant, the trial court
shall authorize the defendant's attorney to obtain such services on
behalf of the defendant and shall order the payment of reasonable fees
and expenses therefor; provided, however, that the court shall first
find in an ex parte proceeding that such investigative, expert or other
services are reasonably necessary for the representation of the
defendant whether in connection with issues relating to guilt or
sentencing. Upon a finding that timely procurement of such services
could not practicably await prior authorization, the court may authorize
the provision and payment for such services nunc pro tunc. Whenever a
court disapproves, in whole or in part, a request for authorization or
voucher, the defendant may apply to a justice of an intermediate
appellate court for an order approving the request or voucher.

9. Any compensation, fee or expense to be paid pursuant to this
section shall be a state charge payable on vouchers approved by the
court which fixed the same, after audit by and on the warrant of the
comptroller. Each claim for compensation and reimbursement shall be
supported by a sworn statement specifying the time expended, services
rendered, expenses incurred and reimbursement or compensation applied
for or received in the same case from any other source. With respect to
compensation to be paid to counsel pursuant to this section, the
appropriate court shall review and determine the reasonableness of the
number of hours expended out of court.

10. Whenever it appears that a defendant is financially able to obtain
adequate representation or investigative, expert or other such services,
or to make partial payment for such representation or other services,
counsel shall inform the court and the court may terminate the
assignment of counsel or authorize payment, as the interests of justice
may dictate, to the capital defender office or the state.

11. The provisions of this section shall cease to apply on the tenth
day, or such later day as the court may determine to be reasonably
necessary to provide for successor counsel if prior counsel is to be
relieved, following the entry of either a final judgment or order not
subject to further review by an appellate court, or a prosecutorial
determination, which necessarily precludes an imposition of a sentence
of death, whereupon the provisions of article eighteen-A or article
eighteen-B of the county law shall be applicable.

12. Nothing in this section shall be construed to authorize the
appointment of counsel, investigative, expert or other services or the
provision of assistance, other than continuing legal education, training
and advice, with respect to the filing, litigation, or appeal of a
petition for a writ of habeas corpus in any federal court; nor shall
anything in this section be construed to authorize the appointment of
attorneys, investigative, expert or other services in connection with
any proceedings other than trials, including separate sentencing
proceedings, of defendants charged with murder in the first degree,
appeals from judgments including a sentence of death, and initial
motions pursuant to section 440.10 or 440.20 of the criminal procedure
law and any appeals therefrom.