Expand Appeal Counsel Rights

Justification

The bill would bring needed efficiencies to the appellate process. Under current law, counsel is appointed for the appeal, but frequently there are meritorious issues that do not appear on the record of the proceedings before the trial court. Often, these issues require consid- eration of additional facts. But appellate courts are not equipped to hear witnesses or receive off-the-record evidence. The result is some- times long delays and a two-step process: first "direct" appellate review, handled by appointed counsel and -- usually later -- a "collat- eral" review process, which itself may be subject to appellate consider- ation.

The bill provides that representation provided by an attorney assigned to an appeal includes representation with respect to any post-conviction motion. associated with the case. In this manner, legal issues appropri- ate for review can be presented and considered earlier -- and comprehen- sively. The piece-meal approach that often results under current law would be largely avoided.

The bill would also address an unjust and nonsensical dichotomy that arises under current law. Institutional providers (such as larger Legal Aid societies and public defender off ices)- are funded by annual appro- priations. Their staffs are generally salaried employees. Attorneys in these offices are more likely to consider post-conviction motions part of their appellate representation and file such motions when needed.* Assigned counsel, on the other hand, are paid by the hour. County Law § 722 does not expressly provide for hourly compensation for these motions. The result is that under current law, whether.pecpssary post- conviction motions are made or not often depends on th4 4mOjyment status of the appointed lawyer (institutional vs. private/ assigned), rather than the merits of the motion.

The bill language is limited in scope. It applies only in instances where there is a direct appeal pending and the post-conviction motion. concerns the judgment on appeal.

Finally, in some instances, a post-conviction motion addresses the adequacy of the representation provided by a particular attorney or law office in the trial court. When appellate counsel was the trial lawyer, or works for the same law office, a conflict of interest may arise. In such instances, under the bill language, the administrator of the assigned counsel plan for the jurisdiction would appoint another attor- ney to represent the defendant.

Prior legislative history

2017-18 - A.8465 (Cook)

Fiscal implications

There are no additional costs to the state. Counties may experience some additional cost for assigned counsel's preparation of post-conviction motions, **but these would be largely offset by savings and efficiencies gained by having these motions considered earlier (as a part of the direct appeal process) and by the opportunity for consolidated appeals.

Effective date

The bill would take effect immediately. *These motions are rare. A New York City study found that, over a five year period, a C.P.L. Art. 440 motion was filed in only 2.4% of the cases assigned to these organiza- tions. "Report of the Criminal Justice Operations Committee ..."), Asso- ciation of the Bar of the City of New York (Jan. 2011) at 1. Many of these motions raised only a claim concerning the legality of the sentence (so CPL 440.20), which is generally a straightforward and rela- tively simple motion to prepare. Id. **Note that County Law § 722 (4) already provides for the payment of costs after "a hearing has been ordered in a proceeding upon a motion, pursuant to article four hundred forty of the criminal procedure law, to vacate a judgment or to set aside a sentence."