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