New York Law Review

Tag: Appellate Advocacy

  • People v. Turner, 16 N.Y.3d 933 (2011): Ineffective Assistance of Appellate Counsel Requires Egregious and Prejudicial Error

    People v. Turner, 16 N.Y.3d 933 (2011)

    To establish ineffective assistance of appellate counsel, a defendant must demonstrate that counsel’s failure to raise a specific issue on appeal was both an egregious error and prejudicial to the defendant’s case.

    Summary

    Defendant, convicted of multiple offenses related to drunk driving and a fatal accident, sought coram nobis relief, claiming ineffective assistance of appellate counsel. He argued that his appellate counsel should have challenged the trial court’s admission of a videotape showing his consent to a blood test, which included prejudicial statements. The New York Court of Appeals affirmed the denial of coram nobis relief, holding that appellate counsel’s failure to raise this issue was not an egregious error and was unlikely to be prejudicial, as the admissibility of the videotape was a matter of trial court discretion and the argument for its exclusion was not clear-cut.

    Facts

    The defendant, while driving drunk, struck and killed a young mother. At trial, the prosecution presented a videotape where the defendant consented to a blood test but added a statement about not releasing the police from responsibility if the needle broke in his arm. Defense counsel objected to the portion of the tape after the consent, arguing it was irrelevant and prejudicial. The trial court admitted the full tape, stating it was probative of the defendant’s mindset before the accident.

    Procedural History

    The defendant was convicted at trial. He appealed, and his conviction was affirmed. He then sought coram nobis relief, arguing ineffective assistance of appellate counsel for failing to challenge the admission of the videotape on direct appeal. The Appellate Division denied the application. The New York Court of Appeals granted permission to appeal and affirmed the Appellate Division’s order denying coram nobis relief.

    Issue(s)

    Whether the defendant was deprived of effective assistance of appellate counsel when his appellate counsel failed to raise, on direct appeal, the issue of the trial court’s admission of the videotape.

    Holding

    No, because the issue of the admission of the videotape was a matter of discretion for the trial court, and appellate counsel’s error, if any, was not egregious and unlikely to have been prejudicial.

    Court’s Reasoning

    The Court of Appeals acknowledged that a single failing by counsel could constitute ineffective assistance if it is “egregious and prejudicial.” However, such instances are rare and typically involve clear-cut and dispositive issues. The court reasoned that the admissibility of the videotape was within the trial court’s discretion. While an argument could have been made that the tape was irrelevant under the then-accepted understanding of the mens rea for depraved indifference murder, this argument was not clear-cut. The court distinguished this case from situations where a single error by appellate counsel was deemed so egregious and prejudicial as to warrant coram nobis relief. The court noted, “It certainly cannot be said that its omission from defendant’s appellate brief was inconsistent with the conduct of ‘a reasonably competent appellate attorney’”. The Court emphasized the high bar for establishing ineffective assistance of appellate counsel and the lack of precedent supporting the defendant’s claim that his appellate counsel’s performance fell below that standard. The Court observed that the parties cited no case where a similar argument – that evidence of the defendant’s emotional state was improperly admitted to show depraved indifference – was made, successfully or unsuccessfully, on appeal.

  • People v. Borrell, 15 N.Y.3d 367 (2010): Standard for Ineffective Assistance of Appellate Counsel

    People v. Borrell, 15 N.Y.3d 367 (2010)

    Appellate counsel provides meaningful representation when they demonstrate a competent grasp of the facts, the law, and appellate procedure, supported by appropriate authority and argument; failing to raise a potentially meritorious issue does not automatically constitute ineffective assistance.

    Summary

    The New York Court of Appeals addressed whether appellate counsel was ineffective for failing to argue that the defendant’s consecutive sentences for two robbery counts were illegal. The Court reversed the Appellate Division’s grant of a writ of error coram nobis, holding that counsel’s performance was not constitutionally deficient. The Court reasoned that the sentencing issue was not clear-cut, and counsel may have made a strategic decision to focus on other issues, some of which were successful. The Court emphasized that meaningful representation does not require perfection, and the overall representation was adequate.

    Facts

    Defendant was convicted on consolidated appeals from two judgments for robbery and related crimes. He argued his appellate counsel was ineffective for failing to argue that consecutive sentences were improperly imposed for two counts of first-degree robbery. These counts stemmed from events during an armed robbery of a bar and its patrons. The Appellate Division initially appeared to agree that the sentences should have been concurrent because the convictions arose from the same transaction.

    Procedural History

    The Appellate Division granted the defendant’s petition for a writ of error coram nobis, seemingly faulting appellate counsel for not raising the sentencing issue. The People appealed. The Court of Appeals granted leave to appeal. The Court of Appeals reversed the Appellate Division’s order and denied the coram nobis application.

    Issue(s)

    Whether appellate counsel’s failure to raise the issue of the legality of consecutive sentences constituted ineffective assistance of counsel, thereby warranting coram nobis relief.

    Holding

    No, because appellate counsel displayed a competent grasp of the facts, law, and appellate procedure, supported by appropriate authority and argument; and because the sentencing issue was not so clear-cut as to render the failure to raise it a sign of ineffective assistance.

    Court’s Reasoning

    The Court of Appeals applied the “meaningful representation” standard from People v. Stultz, holding that appellate counsel provides meaningful representation when they demonstrate “a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument.” The Court emphasized that the key inquiry is whether counsel’s actions were consistent with those of a reasonably competent appellate attorney, not whether a better result could have been achieved. The Court noted the standard is “undemanding” and tolerates errors where the overall representation is “meaningful.” The Court distinguished this case from People v. Turner, where coram nobis relief was appropriate because counsel failed to raise a “clear-cut and completely dispositive” statute of limitations defense. Here, the sentencing argument depended on an analysis of a complex transaction and overlapping elements, making it less clear-cut. Further, the Court pointed out the issue’s uncertain efficacy, as evidenced by the Appellate Division’s differing outcomes and the unsuccessful CPL 440.20 motion. The Court also emphasized that the defendant failed to demonstrate the absence of strategic or legitimate explanations for not briefing the issue. Appellate counsel could have tactically chosen to focus on other issues. Here, counsel successfully argued for reversal of convictions on seven counts. The court stated: “While it may ultimately be determined that defendant should have been sentenced concurrently, as he now contends, and that the representation at issue would have been more efficacious had the issue been raised on the appeal, the relevant and, indeed, dispositive threshold issue on this coram nobis application is not whether defendant’s representation could have been better but whether it was, on the whole, constitutionally adequate. This less exacting standard was met by counsel on the appeal.” Judge Pigott dissented, arguing that the Appellate Division correctly granted the application because appellate courts routinely grant coram nobis applications when appellate counsel fails to raise an issue on direct appeal that the court concludes may have merit.

  • People v. Stultz, 2 N.Y.3d 277 (2004): Defining Ineffective Assistance of Appellate Counsel in New York

    2 N.Y.3d 277 (2004)

    The standard for ineffective assistance of appellate counsel in New York is whether the attorney provided “meaningful representation,” assessed by competence in facts, law, and procedure, not by a strict prejudice test.

    Summary

    The New York Court of Appeals affirmed the denial of defendant Stultz’s coram nobis application, holding that his appellate counsel provided meaningful representation. Stultz argued his appellate counsel was ineffective for failing to challenge trial counsel’s decision not to introduce a witness’s potentially exculpatory statement. The Court established that the “meaningful representation” standard, previously applied to trial counsel, also applies to appellate counsel. The Court found appellate counsel was effective, noting the extensive brief raised several significant issues and that the omitted argument lacked merit.

    Facts

    Stultz was convicted of second-degree murder and weapons possession based on evidence including eyewitness testimony and phone records. A witness, Dolberry, initially told police that another man, Anderson, was the shooter, but she refused to testify at trial, invoking her Fifth Amendment right. The prosecution declined to grant her immunity, and the trial court did not compel her testimony. Defense counsel did not attempt to introduce Dolberry’s prior statements.

    Procedural History

    Following his conviction, Stultz appealed to the Appellate Division, which affirmed. Leave to appeal to the Court of Appeals was denied. Stultz then sought a writ of error coram nobis from the Appellate Division, arguing ineffective assistance of appellate counsel for failure to challenge trial counsel’s decision regarding Dolberry’s statement. The Appellate Division denied the application, and Stultz was granted leave to appeal to the Court of Appeals.

    Issue(s)

    Whether the standard for evaluating claims of ineffective assistance of appellate counsel in New York is the same “meaningful representation” standard applied to trial counsel, and whether Stultz’s appellate counsel met that standard.

    Holding

    Yes, because the “meaningful representation” standard should apply equally to both trial and appellate counsel in New York. The Court affirmed the Appellate Division’s denial of coram nobis relief, finding that Stultz’s appellate counsel provided meaningful representation.

    Court’s Reasoning

    The Court reasoned that the “meaningful representation” standard, established in People v. Baldi, is appropriate for evaluating appellate counsel effectiveness. The Court emphasized the importance of competent grasp of facts, law, and appellate procedure. While appellate counsel has latitude in selecting issues, the representation must be supported by appropriate authority and argument. The Court rejected Stultz’s claim that appellate counsel should have challenged trial counsel’s failure to introduce Dolberry’s statement because that statement lacked sufficient indicia of reliability under People v. Robinson. The Court noted Dolberry’s potential motives for making a false statement and the implausibility of her invoking the Fifth Amendment. The Court stated: “Appellate advocacy is meaningful if it reflects a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument.” The Court further explained, “[e]ffective appellate representation by no means requires counsel to brief or argue every issue that may have merit.” They found appellate counsel’s decision not to raise the issue was a reasonable strategic choice. The Court explicitly distinguished the New York standard from the federal standard articulated in Strickland v. Washington, which requires demonstrating prejudice—that the outcome would have been different but for counsel’s errors. New York requires a showing of prejudice, but it is not an indispensable element; the focus remains on the overall fairness of the proceedings.

  • People v. Vasquez, 70 N.Y.2d 1 (1987): Attorney’s Duty When a Client Insists on Raising Meritless Arguments on Appeal

    70 N.Y.2d 1 (1987)

    When appellate counsel determines that some but not all of the arguments a client wishes to raise on appeal are meritorious, counsel must argue the meritorious claims without disparaging the frivolous claims; the client should be advised to raise the frivolous claims pro se.

    Summary

    The defendant appealed his conviction, and assigned appellate counsel prepared a brief. Counsel argued one point he considered meritorious but disparaged the other nine points the defendant wanted to raise. The New York Court of Appeals held that this procedure denied the defendant effective assistance of counsel. The court reasoned that while counsel is not obligated to argue meritless claims, counsel should not undermine the client’s ability to raise those claims pro se. The proper procedure is to argue meritorious claims, advise the client why other claims are frivolous, and inform the client of their right to file a pro se brief on those issues.

    Facts

    Defendant was convicted and subsequently appealed. The Appellate Division assigned counsel to represent him on appeal.
    Appellate counsel prepared a brief that addressed one point he believed had merit, ineffectiveness of trial counsel. In the brief, counsel explicitly stated that the defendant wished to raise ten points total, but that counsel believed the other nine points lacked merit.

    Procedural History

    After conviction, the defendant appealed to the Appellate Division, which assigned appellate counsel.
    Appellate counsel submitted a brief arguing one point and disparaging the other nine points the defendant wanted to raise.
    The New York Court of Appeals granted leave to appeal to determine whether the defendant was denied effective assistance of counsel.

    Issue(s)

    Whether appellate counsel provides ineffective assistance when, after determining that one of the issues advanced by the defendant has merit, counsel identifies and disparages the other issues the defendant wishes to raise, rather than advising the defendant to raise them pro se?

    Holding

    Yes, because by disparaging the defendant’s other arguments, counsel affirmatively undermined the defendant’s ability to present those arguments effectively in a pro se brief.

    Court’s Reasoning

    The Court of Appeals found that counsel’s actions denied the defendant effective assistance of counsel. The court distinguished this case from situations where an appeal is wholly frivolous, in which case counsel may seek to withdraw under Anders v. California. Here, counsel found one issue with substantial merit, obligating him to serve as an “active advocate in behalf of his client” (Anders v California, supra, at 744). While counsel was not required to discuss the meritless claims, he should not have identified and disparaged them, as this undermined the defendant’s ability to present them pro se.

    The court outlined the proper procedure: counsel should argue the meritorious claims, explain to the client why the other claims are frivolous, and advise the client of the right to file a pro se brief. If the client chooses to do so, counsel should notify the court of the client’s intention to submit a pro se brief.

    The court noted, “The procedure to be followed by appellate counsel when a client requests that several points be presented to the court, some with merit and some with none, is to argue the claim found meritorious and make no comment about claims considered frivolous. As to them, counsel should instruct his client why he believes the points frivolous and advise him that if he still thinks they should be addressed, defendant may file a pro se brief with the court.”

    Because the proper procedure was not followed, the court reversed the order and remitted the matter to the Appellate Division for assignment of new counsel and de novo consideration of the appeal.

  • People v. Gonzalez, 47 N.Y.2d 606 (1979): Adequacy of Counsel for Indigent Criminal Appeals

    People v. Gonzalez, 47 N.Y.2d 606 (1979)

    An indigent criminal defendant is denied effective assistance of counsel when their appointed appellate attorney submits a brief that merely summarizes the trial evidence, states the attorney’s opinion that there are no meritorious issues, lists points the defendant wants raised, but provides no legal argument supporting those points.

    Summary

    Federico Gonzalez was convicted of criminal sale of a controlled substance. His appointed appellate counsel filed a brief that summarized the trial testimony, stated the attorney believed there were no valid appellate issues, and then listed four points Gonzalez wanted raised, without providing any legal argument. Gonzalez, acting pro se, requested new counsel, arguing the appointed attorney’s representation was inadequate. The Appellate Division affirmed the conviction. The New York Court of Appeals reversed, holding that Gonzalez was denied effective assistance of counsel because the “brief” was wholly deficient and failed to advocate on his behalf.

    Facts

    Gonzalez was convicted of two counts of criminal sale of a controlled substance and sentenced to 25 years to life on each count. He requested and was granted assigned counsel for his appeal. The appointed attorney received the trial transcript but filed a brief only after being contacted by the Appellate Division clerk. The brief contained a lengthy summary of the trial testimony, noted some objections, and stated that the attorney felt there were no points to be raised on appeal. The brief then listed four points Gonzalez wanted presented, but contained no argument or discussion supporting any of them.

    Procedural History

    The Appellate Division appointed counsel for Gonzalez’s appeal. The Appellate Division affirmed Gonzalez’s conviction based on the brief submitted by appointed counsel and the District Attorney’s submission. Gonzalez, acting pro se, sought leave to appeal to the New York Court of Appeals, arguing ineffective assistance of counsel. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether an indigent criminal defendant is denied their constitutional right to effective assistance of counsel when the appointed appellate attorney files a “brief” that summarizes the evidence, states there are no points to be raised, lists the defendant’s desired points, but advances no legal argument.

    Holding

    Yes, because the “assistance given must be that of an advocate rather than as amicus curiae,” and the attorney’s actions did not constitute single-minded counsel in the research of the law and marshalling of arguments on the defendant’s behalf.

    Court’s Reasoning

    The Court of Appeals emphasized that indigent criminal defendants have a right to effective assistance of counsel on appeal, meaning the assistance of an advocate, not merely a nominal representative. The court noted the attorney’s dilatory conduct, failure to consult with the defendant or trial counsel, and the perfunctory nature of the brief demonstrated a failure to meet the required standard. The court stated that paid appellate counsel would thoroughly study the record, consult with the defendant and trial counsel. The court found the brief’s lengthy, indiscriminate factual narrative and the absence of legal argument failed to aid either the defendant or the court. The Court stated, “Far from demonstrating conscientious examination of the record and the law, the papers before the Appellate Division on the motion for appointment of substitute counsel clearly portrayed the contrary.” The court quoted People v. Emmett: “appellate counsel not infrequently advance contentions which might otherwise escape the attention of judges of busy appellate courts, no matter how conscientiously and carefully those judges read the records before them.” The Court of Appeals reversed the Appellate Division’s order and remanded the case for a de novo consideration of the appeal. The court suggested the Appellate Divisions develop procedures for attorneys who consider an appeal frivolous and for the court that appointed them.

  • People v. Emmett, 25 N.Y.2d 355 (1969): Right to Counsel on Appeal Includes Opportunity to Submit Brief

    People v. Emmett, 25 N.Y.2d 355 (1969)

    A defendant’s right to counsel on appeal includes the right for that counsel to have an opportunity to prepare and submit a brief on the merits of the case.

    Summary

    The defendant was convicted of issuing a bad check. On appeal to the Appellate Term, the defendant argued insufficient evidence and lack of intelligent waiver of counsel/jury trial. The Appellate Term remitted the case for a hearing on waiver. After a finding of valid waiver and before defense counsel received the hearing minutes, the Appellate Term affirmed the conviction. Counsel’s motion for reargument and leave to file a brief was denied. The New York Court of Appeals reversed, holding that denying counsel the opportunity to submit a brief negates the effective appeal to which a defendant is entitled. The Court emphasized the importance of single-minded advocacy by appellate counsel.

    Facts

    The defendant was convicted in District Court of issuing a worthless check for $51 and sentenced to 10 days in jail (execution suspended). The defendant was not represented by counsel at trial but had Legal Aid counsel for the appeal.

    Procedural History

    The District Court found the defendant guilty. On appeal, the Appellate Term remitted the case for a hearing on whether the defendant knowingly waived his rights. The District Court found that he had. The Appellate Term affirmed the conviction before defense counsel received the hearing minutes. The Appellate Term denied the defendant’s motion for reargument and leave to file a brief. The New York Court of Appeals reversed the Appellate Term’s affirmance and remitted the case to that court for reargument.

    Issue(s)

    Whether a defendant is deprived of the right to appeal when the Appellate Term decides against him without allowing his attorney an opportunity to prepare and submit a brief.

    Holding

    Yes, because implicit in the right to appeal and to have counsel on that appeal is the right for such counsel to be afforded an opportunity to be heard and to submit a brief on the merits of the case.

    Court’s Reasoning

    The Court reasoned that denying a defendant’s lawyer on appeal any opportunity to see or read the record and present arguments negates the effective appeal to which a defendant is entitled. “Implicit in the right of a defendant to appeal (see People v. Borum, 8 Y 2d 177) and to have counsel on that appeal (see People v. Hughes, 15 Y 2d 172; Douglas v. California, 372 U. S. 353) is his right that such counsel be afforded an opportunity to be heard and to submit a brief on the merits of the case.” The Court also noted that there is no substitute for the single-minded advocacy of appellate counsel, who may advance contentions that judges of busy appellate courts might otherwise miss. An appellate court must afford a defendant’s lawyer the opportunity to present arguments, point out alleged errors, and call attention to asserted questions of law. “There is no substitute for the single-minded advocacy of appellate counsel. Experience has demonstrated that they not infrequently advance contentions which might otherwise escape the attention of judges of busy appellate courts, no matter how conscientiously and carefully those judges read the records before them.”