Let Courts Fix Bad Lawyering

Justification

Although CPL section 440.10(1)(h) allows generally for a defendant to challenge the constitutionality of his or her conviction on collateral review, subdivision two of the statute establishes a number of mandatory procedural bars to such claims. Specifically, pursuant to subdivision (2)(b) of section 440.10, be court must deny a motion to vacate a judg- ment under that section when "the judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear upon the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal" CFL 440.10(2)(b). And, under CPL 440.10(2) (c), the court must deny such motion when; "although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, 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 effect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him." CPL 440.10(2)(c).(1).

The underlying purpose of subdivisions 2(b) and 2(c) is to prevent a defendant from using section 440.10 of the CPL as a substitute for direct appeal. See, Peop18 v. took, 67 N.Y.2d 100 (1986). Many jurisd- ic-tions, including the federal system, have analogous procedural bars.

According to the United States Supreme Court, such rules are intended "to conserve judicial resources and to respect the law's important interest in the finality of judgments." Massaro v. United States, 533 U.S. 500, 504 (2003). But, as the Supreme Court recognized in exempting ineffective assistance claims from the federal judiciary's similar procedural bar, requiring a criminal defendant to bring ineffective assistance claims on direct appeal "does not promote these objectives." Id. Applying the procedural bar to ineffective assistance claims creates a "risk that defendants will feel compelled to raise the issue before there has been an opportunity fully to develop the claim's factual pred- icate," and the issue will "be raised for the first time in a forum not best suited to assess those facts." id. As the Supreme Court further explained, "when an ineffectiveness to claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record that is not developed precisely for the purpose of litigating or preserving the claim and thus often incomplete or inadequate for this purpose." Id. The Supreme Court's reasons for exempting ineffective assistance claims from its equivalent procedural bar are equally appli- cable in New York's statutory scheme. New York courts already have emphasized that, in typical cases, ineffective assistance claims should be raised on collateral review. See, e.g., People v. Brown, 45 N.Y. 2d 852 (1978) ("in the typical case, it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL § 440.10"). However, notwithstanding this seemingly broad language, it is far from unheard of for a court to deny the CPL 440.10 application on the premise that the trial record was adequate to permit raising the claim on appeal. See, e.g., People v. Duver, 294 A.D. 2d 594 (2d Dept., 2002); People v. Cardenas, 4 A.D. 2d 103 (2d Dept., 2004). Prohibiting a defendant from collaterally raising an ineffective assistance claim that potentially falls within the narrow class of directly appealable ineffectiveness claims imposes unnecessary burdens on defendants and on the judicial system. Importantly, it is often difficult for a defendant to predict whether a given court will categorize his or her ineffectiveness claim as cognizable on direct appeal.

This creates a dilemma for a defendant who plans to press an ineffective assistance claim. If the defendant raises the claim on collateral review, there is a risk that the trial court will deny his or her claim under the mandatory procedural bars - the defendant then will only be able to raise the claim on direct appeal if the appellate court has agreed to delay the perfection of his or her appeal until the disposi- tion of the 440.10 motion, and if the appellate court agrees with the trial court's determination that the claim is cognizable on appeal. If, on the other hand, the defendant raises the claim first on direct appeal, there is a risk that the appellate court will decide that the claim is not cognizable on direct appeal - in that situation, the defendant will have had to complete the entire appellate process before getting to raise a claim, that could have obviated the need for an appeal in the first place. If the defendant raises the claim in both forums simultaneously, he or she runs the greatest risk of all - losing on procedural grounds in two courts without any adjudication of the merits of the claim.

Following the lead of the federal system and the majority of other states, this measure would amend subdivision two of section 440.10 of the CPL to remove the existing bars to collateral review where the claim is the ineffective assistance of counsel. In so doing, it would encour- age these claims to be brought in the preferable forum in the first instance, would help to eliminate the potential injustices to defendants outlined above, and would help to prevent unnecessary, or unduly delayed, appeals in these cases.

Legislative history

2017-18 A7621/S335 Passed Assembly/ CODES 2015-2016--S1345 2013-2014 - S.42 2011-12: 5.1020 2007-08:S.4667 Advanced to 3rd Reading;A.7599; Passed Assembly died in Senate 2005-06: A.8362; Passed Assembly and died in Senate.

Fiscal implications

None

Local fiscal implications

None

Effective date

This act shall take effect immediately.