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

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