Standard Is Set For Ineffective Appellate Counsel

John Caher
New York Law Journal
05-05-2004


ALBANY — In a case of first impression, the Court of Appeals yesterday adopted a relatively defendant-friendly standard for reviewing claims of ineffective assistance of appellate counsel in criminal cases.

The state's highest court ventured into an entirely new jurisdictional arena in deciding that attacks on appellate representation are subject to the same criteria as claims of ineffective trial counsel. By unanimous vote, the Court applied People v. Baldi, where it set the standard for evaluating the effectiveness of trial counsel, to appellate cases.

The Baldi standard is somewhat more lenient than required under U.S. Supreme Court precedent in that it allows defendants to prevail without showing both that the representation was ineffective and, but for that ineffective representation, the result probably would have been different. As it now stands in New York, a claim of ineffective assistance — at the trial or appellate level — is viable whenever a defendant is deprived of "meaningful representation."

People v. Stultz, 60, represents the Court's first word on a matter where, until legislation was passed in 2002, it lacked jurisdiction.

In the past, a defendant claiming ineffective assistance at the appellate level had but one remedy: a writ of error coram nobis to the same Appellate Division that affirmed the conviction.

The Court of Appeals lacked jurisdiction to review coram nobis applications. So a defendant whose claim of ineffective appellate assistance was denied by an Appellate Division panel had no state court avenue of redress.

The Court of Appeals urged a change in decisions in People v. Bachert, 69 NY2d 593 (1987), and People v. Marsicoveteri, 79 NY2d 913 (1992). In response, the Legislature amended §450.90 of the Criminal Procedure Law two years ago.

A bill by Senator Dale M. Volker, R-Erie County, and Assemblyman Clarence Norman Jr., D-Brooklyn, granted the Court of Appeals discretionary authority to review rulings on alleged ineffective assistance of appellate counsel. The bill left to the Court the task of setting the standard to be used for evaluating such claims. Yesterday it did so.

People v. Stultz reached the Court last fall when Judge Carmen Beauchamp Ciparick, invoking the Volker-Norman bill, granted leave for the first time in a coram nobis case.

The case involved a defendant, Clayton Stultz, who was convicted of second-degree murder in a 1993 shooting in Nassau County.

After Mr. Stultz's conviction was affirmed by the Appellate Division, Second Department, in 2001, he brought a writ of error coram nobis. He claimed he was denied effective assistance on his direct appeal because appellate counsel did not argue that trial counsel had been ineffective. The Second Department denied the application. Because of the 2002 legislation, the Court of Appeals was able to review the determination of the mid-level court.

Criteria Set

Judge Albert M. Rosenblatt, writing for the unanimous court, said Mr. Stultz was afforded effective appellate representation under any standard. More importantly, the Court defined the standard that it and the appellate divisions will use henceforth.

In People v. Baldi, 54 NY2d 137, the Court in 1981 established the criteria for effective assistance of trial counsel. It held that the constitutional requirements are satisfied when counsel provides "meaningful representation." The Court retained that standard even after the U.S. Supreme Court, three years later, decided Strickland v. Washington, 466 US 668.

Strickland set a two-part test for evaluating ineffective trial counsel claims. It required defendants to prove not only that their representative was ineffective, but also that the defendant was prejudiced by counsel's ineffectiveness.

The Court of Appeals has refused to adopt the Supreme Court's hard-and-fast prejudice rule with regard to trial-level claims of ineffective assistance. Yesterday, it took the same stance with regard to appellate-level claims of ineffective assistance.

Judge Rosenblatt said there is no sense in having two separate standards, one for trial assistance and another for appellate assistance. He also said that prejudice — a showing that counsel's ineffectiveness likely resulted in a determination unfavorable to the defendant — is pertinent and possibly pivotal in New York, but not dispositive.

"We would . . . be skeptical of an ineffective assistance of counsel claim absent any showing of prejudice," Judge Rosenblatt wrote. "But under our Baldi jurisprudence, a defendant need not fully satisfy the prejudice test of Strickland."

Judge Rosenblatt said appellate advocacy meets the "meaningful" standard "if it reflects a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument."

The Court made clear that it will be reluctant to second-guess lawyers' tactical decisions and stressed that appellate counsel must have wide latitude "in deciding which points to advance and how to order them."

On the merits of Mr. Stultz's claim, the Court observed that any review of appellate counsel effectiveness entails an element of "Monday morning quarterbacking." Here, Judge Rosenblatt said, the defendant asked the Court to reach too far in claiming that appellate counsel was ineffective for neglecting to challenge the effectiveness of trial counsel.

"The case before us involves a second layer of review, in which the Tuesday morning quarterback assails the Monday morning quarterback for not assailing the quarterback who actually played the game," Judge Rosenblatt said. "While there may be instances in which a claim of this type will justify relief, this is not one of them."

Norman A. Olch, a professor of law at the John Jay College of Criminal Justice in Manhattan and chairman of the New York State Bar Association's appellate courts committee, argued for the defendant. Nassau County Assistant District Attorney Edward Miller appeared for the prosecution.

Mr. Olch said yesterday that the ruling provides important guidance to the lower courts, which he said have been "all over the ballpark" on the standard for ineffective appellate assistance claims.

"This sets a uniform standard for the entire state," he said. "It is a better standard than the federal standard, and the real issue now becomes the application of that standard."

Mr. Miller was unavailable for comment.

Counsel for Juveniles

In another criminal appeal decided yesterday, the Court held that the parent of a juvenile offender may invoke counsel rights on behalf of the child.

People v. Mitchell, 18, arose from the Bronx, where the defendant was convicted of holding up a liquor store.

Ricky Mitchell was 15 when the robbery occurred in 1996. On appeal, he sought suppression of lineup identification evidence on the grounds that his mother could invoke his right to counsel and did so in a telephone conversation with a police officer.

Chief Judge Judith S. Kaye, writing for the unanimous Court, said that a parent can indeed invoke a child's counsel rights, but that the parent in this case did not do so.

"While no magic words are required, an unequivocal invocation — even when uttered by a layperson understandably upset at the arrest of her child — must alert the police that the presence of counsel at the lineup is specifically requested," Chief Judge Kaye wrote. "Here, defendant's mother merely informed the police that defendant had a lawyer and asked whether the police wanted that lawyer's number."

Appearing were Bronx Assistant District Attorney Andrew N. Sacher for the prosecution and Laurence T. Hausman of the Legal Aid Society's criminal appeals bureau in Manhattan.