14 Vesey Street, New York, NY 10007 ● Tel. 212-267-6646 ● Fax: 212-406-9252 ● www.nycla.org

Report of the NYCLA Appellate Courts Committee

on Establishing Procedures for the Resolution of

Ineffective-Assistance-of-Appellate-Counsel Claims

The Appellate Courts Committee of the New York County Lawyers Association urges

the State Legislature or the Judiciary to establish procedures for the litigation of

ineffective-assistance-of-appellate-counsel claims.1

Enacted in 1970, Article 440 of the Criminal Procedure Law established

comprehensive procedures for the adjudication of collateral attacks previously

recognized under common law as habeas corpus and coram nobis petitions. Litigants

now utilize these provisions to obtain review of violations that are beyond the original

trial record, most frequently ineffective assistance of trial counsel. Among the

statute’s most important accomplishments was its institution of clear procedures for

the resolution of factual questions.

Unfortunately, while such comprehensive procedures continue to govern claims of

ineffective assistance of trial counsel, there are no codified procedures governing

ineffective-assistance-of-appellate-counsel claims. Despite an express invitation from

the Court of Appeals to enact statutory procedures or court rules governing such

claims,2 and despite the continuing success of C.P.L. Article 440 procedures, the

Legislature and Judiciary have failed to build upon that success by creating

procedures governing claims of ineffective assistance of appellate counsel.

1 The New York County Lawyers Association was founded in 1908 as one of the first major bar

associations in the country that admitted members without regard to race, ethnicity, religion or

gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in

American jurisprudence, including through the work of its many committees that provide in-depth

analysis and insight into legal practice areas. The views expressed are those of the Appellate Courts

Committee only and approved for dissemination by the President; these views have not been approved

by the New York County Lawyers Association Board of Directors, and do not necessarily represent the

views of the Board.

The Committee thanks Edward E. Smith of The Legal Aid Society of Suffolk County for his

significant contributions to this report.

2 69 N.Y.2d 593, 598 (1987).

Matthew Bova & Scott Danner Co-Chairs, Appellate Courts Committee

2

Recognizing the need for reform, the Advisory Committee on Criminal Law and

Procedure has recommended that “the writ of coram nobis be codified in a new section

. . . of the Criminal Procedure Law.”3 This report builds on that recommendation,

proposing that the Legislature and/or Judiciary develop comprehensive procedures

for the litigation of claims of ineffective assistance of appellate counsel. This report

also urges three specific reforms: (1) the creation of a fact-finding procedure; (2) a

requirement that the appellate court make findings of fact or conclusions of law; and

(3) the nullification of a rule requiring a defendant to exercise “due diligence” in

investigating and ultimately detecting appellate counsel’s deficiencies. These reforms

will enhance the efficiency and fairness of the coram nobis process.

I. The Current State of the Law

Unlike the federal constitution, the state constitution guarantees the right to an

appeal.4 Thus, the State has an obligation “to make certain that criminal defendants

receive the careful advocacy needed to ensure that rights are not forgone and that

substantial legal and factual arguments are not inadvertently passed over.”5 Further,

appellate procedures “must provide the criminal appellant with the minimal

safeguards necessary to make an adequate and effective appeal.”6 Among the most

critical of those safeguards is a right to the effective assistance of appellate counsel

(including at the notice-of-appeal stage).7

While this constitutional right is well established, there are no procedures for the

litigation of ineffective-assistance-of-appellate-counsel claims. The only recourse

available to criminal defendants deprived of their right to effective assistance of

appellate counsel is the filing of a petition for a writ of error coram nobis before the

intermediate appellate court. Over the past few decades, the Court of Appeals has

pointed to the writ as the exclusive vehicle for addressing deprivations of the right to

effective assistance at several steps of the appellate process, including:

3 Report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrative

Judge of the Courts of the State of New York, p. 129 (Jan. 2018).

4 N.Y. Const. Art. VI § 4(k); People v. Pollenz, 67 N.Y.2d 264 (1986).

5 People v. West, 100 N.Y.2d 23, 28 (2003) (citations omitted).

6 Id.

7 People v. Syville, 15 N.Y.3d 391, 397 (2010).

3

the complete deprivation of counsel on appeal before the intermediate

appellate court;8

counsel’s inexcusable failure to perfect an appeal before the intermediate

appellate court;9 and

counsel’s unjustifiable failure to timely file a notice of appeal.10

Given the absence of any statutory framework, the Court of Appeals has struggled to

craft coherent procedures for the intermediate appellate court’s resolution of coram

nobis petitions premised on claims of ineffective assistance on appeal. For instance,

the Court has suggested, in dictum, a common law rule that in order to secure relief

due to counsel’s failure to file a notice of appeal, the defendant must personally

exercise “due diligence” in investigating counsel’s blunder.11 In doing so, the Court

has suggested a new common law procedural bar without any legislative

authorization.

Three aspects of current procedures, summarized below, are perhaps the most

problematic: (1) there is no mechanism for fact-finding; (2) there is no requirement

that the intermediate appellate court make findings of fact or conclusions of law; and

(3) a common law due-diligence standard may bar petitions alleging ineffective

assistance of counsel due to the failure to file a notice of appeal.

A. No fact-finding procedures

Often, questions concerning whether defendants have been denied effective

assistance of appellate counsel involve significant—and disputed—questions of fact.12

8 People v. Brun, 15 N.Y.3d 875, 876-77 (2010).

9 People v. Bachert, 69 N.Y.2d 593, 598 (1987).

10 People v. Syville, 15 N.Y.3d 391, 398 (2010).

11 People v. Rosario, 26 N.Y.3d 597, 602-03 (2015)

12 For instance, if appellate counsel omitted an obvious argument for plea vacatur, and instead

only sought dismissal of the indictment, there is a factual question about whether the client instructed

the lawyer that he/she did not want plea vacatur. If the client did issue that instruction, appellate

counsel’s omission of a promising vacatur argument would not be ineffective assistance of counsel. On

the other hand, if appellate counsel simply missed a promising vacatur argument, counsel would be

ineffective. A factual hearing would thus be necessary to resolve the claim that appellate counsel was

ineffective in omitting the plea vacatur argument.

4

Yet, absent any statutory or rule-based procedures governing the holding of a fact-

finding hearing, intermediate appellate courts have neither engaged in, nor remitted

for, fact finding.13

B. Findings of fact and conclusions of law

Unlike C.P.L. § 440.30, which expressly requires post-conviction courts to issue

written findings of fact and conclusions of law when ruling on ineffective-assistance-

of-trial-counsel claims,14 there is no such requirement in the appellate context. Thus,

the intermediate appellate court can—and almost always does—write nothing more

than: “WRIT OF ERROR CORAM NOBIS DENIED.” The routine issuance of

summary orders undermines Court of Appeals review. Absent any findings, the

High Court can only speculate as to the basis for the decision. And if the unspoken

justification for the denial is legally flawed, the Court of Appeals won’t know about

it, and thus cannot correct it. Further, the issuance of summary orders impedes the

development of the law and risks creating a perception among the public (or at least

the aggrieved litigant) that such applications do not receive close attention and

consideration.

C. A due diligence bar

Dictum from Court of Appeals decisions suggests that, as a matter of state common

law, a defendant alleging ineffective assistance for failing to file a notice of appeal

must exercise due diligence in investigating counsel’s error. This requirement has

effectively operated as a statute of limitations on this discrete class of claims.15

This common law procedure creates an anomaly in ineffective-assistance law. After

all, Article 440, which governs the litigation of ineffective assistance of trial counsel,

imposes no due diligence requirement. Instead, such motions can be filed “at any

time.”16 Similarly, no case law suggests that a defendant must exercise due diligence

in investigating ineffective assistance of appellate counsel.

13 Cf. C.P.L. § 440.30 (establishing comprehensive fact-finding and hearing procedures governing

ineffective assistance of trial counsel claims).

14 C.P.L. § 440.30(5), (7).

15 People v. Arjune, 30 N.Y.3d 347, 361 (2017); People v. Andrews, 23 N.Y.3d 605, 615-16 (2014);

People v. Rosario, 26 N.Y.3d 597, 602-03 (2015).

16 C.P.L. § 440.10(1); C.P.L. § 440.20(1).

5

D. People v. Arjune

The unfortunate reality of the status quo was on full display in People v. Arjune.17

That appeal involved a barely-literate, 22-year-old man who immigrated to the

United States and was arrested after he was attacked in a Queens restaurant and

subsequently hid the knife he used to defend himself. After a trial, the jury acquitted

him of attempted murder and assault, but convicted him of criminally possessing a

weapon and tampering with evidence. After sentencing, his attorney filed a notice of

appeal on his behalf, but never advised him of his appellate rights or took any action

once the Appellate Division notified him it was dismissing Mr. Arjune’s appeal for

failure to perfect.

Following Mr. Arjune’s release, the federal government initiated deportation

proceedings against him and Mr. Arjune alleged that counsel was ineffective for

failing to ensure that he was represented on appeal. The Appellate Division did not

conduct any fact-finding hearing. In turn, the Appellate Division summarily denied

the petition without opinion, leaving the Court of Appeals to speculate as to the

factual and/or legal predicates for the Appellate Division’s denial.

II. The Solution: Look Outward and Inward

Fortunately, New York is not the first jurisdiction to grapple with this problem.

Through legislation and court decisions, a vast majority of states—45—have

established procedures for formal judicial fact-finding to address claims of ineffective

assistance of appellate counsel.18 Of those, 38 require that such claims be brought

before trial-level courts. Four others require them to be brought before the appellate

courts that decided the original appeal which then make their own findings of fact.

Two more have adopted a hybrid approach, whereby petitioners claiming ineffective

assistance of counsel on appeal bring their claims first to the appellate court that

decided the appeal, which then retains the discretion to remand the claim to a trial-

level court for additional fact finding if necessary. Finally, one state—Virginia—

requires petitioners to bring their claims directly to its Supreme Court, which has

17 37 N.Y.3d 347 (2017).

18 See Attached Table.

6

original and exclusive jurisdiction over all habeas claims, although the Virginia

Supreme Court may remand petitions to trial-level courts for additional fact finding.19

New York’s Article 440 also serves as a perfect model for reform. Article 440 already

establishes effective procedures for adjudicating claims of ineffective assistance of

trial/sentencing counsel. This set of procedures can serve as a model for resolving

similar claims in the appellate context. In other words, rectification of this problem

requires nothing more than statutory symmetry.

In particular, C.P.L. § 440.30 already establishes procedures for fact-finding hearings

and requires courts to make findings of fact and conclusions of law.20 Extending this

practice to claims of ineffective assistance on appeal would thus be an easy step

toward elimination of the current void, especially in light of our highest Court’s

observation that “[t]he Appellate Division . . . has the flexibility, should the need

arise, to refer factual disputes for hearings to the [trial] court or perhaps to judicial

hearing officers.”21 Doing so would enable properly-equipped courts to engage in fact

finding and solicit relevant information from various sources, including former

appellate counsel.

Finally, the new rules should reject dictum from Court of Appeals decisions stating

that a defendant must exercise “due diligence” in investigating counsel’s failure to

file a timely notice of appeal.22 Under this rule, the defendant must personally

investigate and detect counsel’s blunder. To successfully do so, the defendant must

possess a high level of legal sophistication—that is, the defendant must: (1) know the

relevant time deadlines imposed by the C.P.L. for filing a notice of appeal; (2) know

that ineffective assistance of counsel can excuse counsel’s failure; and (3) investigate

and monitor counsel’s compliance with the professional obligation to comply with

filing deadlines.

19 Id.

20 Furthermore, the Legislature has recognized the need for fact finding in cases where criminal

defendants claim that counsel was ineffective beyond the trial stage. When faced with a request to file

a late notice of appeal, including where the untimeliness resulted from ineffective assistance, C.P.L. §

460.30(5) authorizes the intermediate appellate court to “order the criminal court which entered or

imposed the judgment, sentence or order sought to be appealed to conduct a hearing and to make and

report findings of fact essential to the determination of such motion.”

21 People v. Bachert, 69 N.Y.2d 593, 600 (1987).

22 Rosario, 26 N.Y.3d at 602-03.

7

As this Committee recently argued in its recent amicus brief to the New York Court

of Appeals in People v. Grimes,23 a due diligence rule is illogical and unfair for several

reasons:

the rule unfairly and illogically forces lay defendants to suffer the

consequences of a trained professional’s incompetence;

the rule unfairly requires clients to make sure their lawyers do their

jobs;

a defendant alleging ineffective assistance of trial/sentencing counsel

need not show due diligence, so there should not be an artificial due-

diligence carve out in the notice-of-appeal context;

a due diligence rule would ignore a juggernaut of precedent confirming

that when a defendant “defaults a claim as a result of the denial of the

right to effective assistance of counsel, the State, which is responsible

for the denial as a constitutional matter, must bear the cost of any

resulting default and the harm to state interests that [appellate review]

entails”;24 and

a due diligence rule is unworkable and subjective.25

The Legislature or Judiciary (under its rule-making power) should reject a due

diligence rule.

23 Our amicus brief is attached to this report. As the Grimes court found no violation of the right

to effective assistance of counsel, the Court did not reach our claim that due-diligence should not be

required in the ineffective-assistance context. 2018 W.L. 5259792 (New York Oct. 23, 2018).

24 Coleman v. Thompson, 501 U.S. 722, 754 (1991); People v. Montgomery, 24 N.Y.2d 130, 132

(1969); People v. Syville, 15 N.Y.3d 391, 397 (2010); see generally Evitts v. Lucey, 469 U.S. 387, 391-97

(1985); Martinez v. Ryan, 566 U.S. 1, 12 (2012); Murray v. Carrier, 477 U.S. 478, 488 (1986).

25 See Amicus Brief, above, at 7-25.

8

CONCLUSION

In holding more than thirty years ago that C.P.L. § 440.10 did not provide a vehicle

for resolving a claim of ineffective assistance of counsel on appeal, the Court of

Appeals “invite[d] the Legislature’s prompt attention to this problem.”26 We urge the

Legislature and the Judiciary to accept that invitation by codifying procedures for the

litigation of this important class of constitutional claims. That reform is long overdue.

Respectfully Submitted,

Appellate Courts Committee

Matthew Bova and Scott Danner, Co-Chairs

January 24, 2019

26 Bachert, 69 N.Y.2d at 600.

Appendix 1

Trial Court Fact Finding (38)

Intermediate

Appellate Court

Fact Finding (5)

Intermediate

Appellate

Court Has

Discretion to

Remand for

Fact Finding

(2)

Court of Last Resort

Has Discretion to

Remand for Fact

Finding (1)

ALABAMA

Alabama R. of Crim. P. 32.1; Banville

v. State, No. CR-15-1384, 2017 Ala.

Crim. App. LEXIS 18, at *9 (Crim.

App. Mar. 17, 2017)

CALIFORNIA

Cal Rules of Court

8.386(f); In re

Serrano, 10 Cal.

4th 447, 455 (1995)

DISTRICT OF

COLUMBIA

Watson v.

United States,

536 A.2d 1056,

1060, 1061

(D.C. 1987)

VIRGINIA

Dodson v. Dir. of

Dep't of Corr., 233 Va.

303, 310 (1987)

ARIZONA

Ariz. R. Cr. P. 32.1(f); State v. Hall,

118 Ariz. 460, 461-62 (1978)

FLORIDA

Smith v. State, 400

So. 2d 956, 960

(Fla. 1981)

MISSOURI

Mallett v.

State, 769

S.W.2d 77, 83

n.5 (Mo. 1989)

CONNECTICUT

Conn. Gen. Stat. § 52-470(b); Iovieno

v. Comm'r of Corr., 242 Conn. 689,

692-93 (1997)

OHIO

Ohio App. Rule

26(B); State v.

Davis, 119 Ohio St.

3d 422, 426 (2008)

GEORGIA

Brown v. Baskin, 286 Ga. 681, 681

(2010)

WASHINGTON

In re Pers. Restraint

of Maxfield, 133

Wash. 2d 332, 336

(1997)

GUAM

People v. Angoco, 2004 Guam 11, ¶ 4

WISCONSIN

State v. Knight, 168

Wis. 2d 509, 520

(1992)

HAWAII

Haw. R. Penal P. Rule 40(f);

IDAHO

Matthews v. State, 122 Idaho 801,

805-06 (1992)

ILLINOIS

725 Ill. Comp. Stat. Ann. 5/122-6;

People v. Golden, 229 Ill. 2d 277, 284

(2008)

INDIANA

Mato v. State, 478 N.E.2d 57, 62 (Ind.

1985)

IOWA

Iowa R. Civ. P. 1.904(2); Lamphere v.

State, 348 N.W.2d 212, 215 (Iowa

1984)

KANSAS

Kan. Stat. Ann. § 60-1507; Holmes v.

State, 292 Kan. 271, 274 (2011)

KENTUCKY

Ky. R. Cr Rule 11.42(7); Sanders v.

Commonwealth, 339 S.W.3d 427, 434

(Ky. 2011)

LOUISIANA

La. C. Cr. P. art. 930(A); State v.

Francis, 220 So. 3d 703, 704 (La.

2017)

MAINE

Me. Rev. Stat. tit. 15, § 2123(1);

Salley v. State, 169 A.3d 392, 394 (Me.

2017)

MARYLAND

Md. Code Crim. Pro. § 7-102(a)(1);

Gross v. State, 371 Md. 334, 343

(2002)

MASSACHUSETTS

Mass. R. Crim. P. 30(a);

Commonwealth v. Richard, 398 Mass.

392, 392-93 (1986)

Appendix 2

MICHIGAN

People v. Rusiecki, 461 Mich. 947,

943-44 (2000)

MINNESOTA

Minn. Stat. § 590.04(3); Bobo v. State,

820 N.W.2d 511, 516 (Minn. 2012)

MISSISSIPPPI

Miss. Code § 99-39-5(1); Ford v. State,

708 So. 2d 73, 74 n.1 (Miss. 1998)

MONTANA

MCA § 46-21-101(1); Dawson v. State,

301 Mont. 135, 139, 172-74 (2000)

NEBRASKA

State v. Smith, 294 Neb. 311, 318

(2016)

NEVADA

Lara v. State, 120 Nev. 177, 183-84

(2004)

NEW HAMPSHIRE

State v. Brown, 166 N.H. 520, 522

(2014)

NEW JERSEY

N.J. Ct. R. 3:22-2(a); State v. Echols,

199 N.J. 344, 349 (2009)

NORTH CAROLINA

N.C. Gen. Stat. § 15A-1413; State v.

Todd, 369 N.C. 707, 708 (2017)

NORTH DAKOTA

N.D. Cent. Code § 29-32.1-01; Gaede

v. State, 801 N.W.2d 707, 708-09

(N.D. 2011)

OKLAHOMA

Okla. Stat. tit. 22, § 1080; Logan v.

State, 293 P.3d 969, 979 (Okla. Crim.

App. 2013)

OREGON

Welch v. Gladden, 253 Or. 228, 230-31

(1969)

PENNSYLVANIA

Commonwealth v. Sullivan, 472 Pa.

129, 141-44 (1977)

RHODE ISAND

10 R.I. Gen. Laws § 9.1-1; Young v.

State, 877 A.2d 625, 628 (R.I. 2005)

SOUTH CAROLINA

S.C. Code Ann. § 17-27-20; Ezell v.

State, 345 S.C. 312, 313 (2001)

SOUTH DAKOTA

Miller v. Young, 2018 S.D. 33, ¶ 7

(2018)

TENNESSEE

Tenn. Code Ann. § 40-30-103;

Campbell v. State, 904 S.W.2d 594,

595-96 (Tenn. 1995)

TEXAS

Tex. Code Crim. Proc. Art. 11.07; Ex

parte Santana, 227 S.W.3d 700, 703-

04 (Tex. Crim. App. 2007)

UTAH

Dunn v. Cook, 791 P.2d 873, 878

(Utah 1990)

VERMONT

Vt. Stat. Ann. tit. 13, § 7131; In re

Hall, 195 Vt. 661 (2013)

WEST VIRGINIA

State v. VanHoose, 227 W. Va. 37, 40

(2010)

WYOMING

Wyo. Stat. Ann. § 7-14-101(b); Harlow

v. State, 105 P.3d 1049, 1058-59 (Wyo.

2005)

Court of Appeals of the State of New York

The People of the State of New York,

Respondent,

v.

Jakim Grimes,

Appellant.

APL: 2017-00167

Brief of Amicus Curiae New York County Lawyers Association

Committee on Appellate Courts

MATTHEW BOVA

WILLIAM D. BUCKLEY

SCOTT M. DANNER

DANA E. HEITZ

Attorneys for Amicus Curiae New York County Lawyers Association

Committee on Appellate Courts 14 Vesey StreetNew York, NY 10007Telephone: (212) 267 6646 Facsimile: (212) 406 9252

Dana E. Heitz

Of CounselAugust 31, 2018

______________________________________________

TABLE OF CONTENTS

TABLE OF AUTHORITIES.........................................................................ii

STATEMENT OF INTEREST OF AMICUS CURIAE..............................1

SUMMARY OF ARGUMENT....................................................................2

STATEMENT OF THE CASE.....................................................................5

ARGUMENT: This Court should reject a common-law

rule that would require defendants to “diligently”

investigate counsel’s compliance with his/her

professional obligations in order to obtain relief for

ineffective assistance of counsel.................................................................7

A. This Court has never held that due diligence can

bar a meritorious ineffective assistance of counsel claim............9

B. A due diligence rule—which imposes an

obligation on lay defendants to investigate and

monitor counsel’s compliance with professional

mandates—unfairly and illogically forces defendants

to suffer the consequences of ineffective assistance...................11

C. A common-law requirement that defendants

must exercise due diligence would clash with the

Legislature’s determination—in numerous other

contexts—that no such requirement exists...................................19

D. A due diligence rule is unworkable........................................21

E. Rejecting a due diligence rule will not

meaningfully undermine state interests.......................................21

CONCLUSION...........................................................................................26

WORD-COUNT CERTIFICATION.........................................................27

i

TABLE OF AUTHORITIES

NEW YORK CONSTITUTION

Article I § 6...............................................................................................3, 12

NEW YORK STATUTES AND REGULATIONS

New York Codes, Rules and Regulations

22 N.Y.C.R.R. § 606.5(b)(2)..........................................................................4

22 N.Y.C.R.R. § 671.3(a)...............................................................................4

22 N.Y.C.R.R. § 821.2(a)...............................................................................4

22 N.Y.C.R.R. § 1015.7............................................................................4, 18

Criminal Procedure Law

C.P.L. § 255.20(1)........................................................................................15

C.P.L. § 440.10(1).....................................................................................2, 20

C.P.L. § 440.20(1).....................................................................................2, 20

C.P.L. § 460.10(1).....................................................................................7, 18

C.P.L. § 460.10(5)(a)......................................................................2, 5, 11, 18

C.P.L. § 460.30...............................................................................2, 5, 10, 11

New York Rules of Professional Conduct

New York Rules of Professional Conduct Rule 1.3.................................4

ii

CASES

United States Supreme Court

Brentwood Academy v. Tennessee Secondary School

Athletic Ass’n, 531 U.S. 288 (2001).................................................23

Coleman v. Thompson, 501 U.S. 722 (1991)..................................8, 17, 24

Crawford v. Washington, 541 U.S. 36 (2004)............................................3

Evitts v. Lucey, 469 U.S. 387 (1985)......................................................8, 17

Gideon v. Wainwright, 372 U.S. 335 (1963)............................................11

Halbert v. Michigan, 545 U.S. 605 (2005).................................................11

Martinez v. Ryan, 566 U.S. 1 (2012)...............................................8, 17, 25

Maryland v. King, 569 U.S. 435 (2013).....................................................25

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)..........................25

Murray v. Carrier, 477 U.S. 478 (1986).................................................8, 17

Ohio v. Roberts, 448 U.S. 56 (1980)............................................................3

Roe v. Flores-Ortega, 528 U.S. 470 (2000)....................................17, 18, 21

Strickland v. Washington, 466 U.S. 668 (1984).................................12, 14

New York Court of Appeals

Matter of Cooperman, 83 N.Y.2d 465 (1994)..........................................12

Greene v. Greene, 56 N.Y.2d 86 (1982)....................................................14

Glamm v. Allen, 57 N.Y.2d 87 (1982).......................................................14

People v. Arjune, 30 N.Y.3d 347 (2017)...........................................7, 9, 10

People v. Andrews, 23 N.Y.3d 605 (2014).......................................7, 9, 10

People v. Bachert, 69 N.Y.2d 593 (1987)..................................................16

People v. D’Alessandro, 13 N.Y.3d 216 (2009).......................................16

People v. Montgomery, 24 N.Y.2d 130 (1969)....................................8, 17

iii

People v. Rosario, 26 N.Y.3d 597 (2015)..........................................7, 9, 10

People v. Syville, 15 N.Y.3d 391 (2010)............................................passim

People v. Tiger, __ N.Y.3d __, 2018 N.Y. Slip Op. 04377

(June 14, 2018)...................................................................................22

Reed v. McCord, 160 N.Y. 330, 335 (1899)................................................3

Saratoga County Chamber of Com., Inc. v. Pataki,

100 N.Y.2d 801 (2003).......................................................................11

Sherman v. Robinson, 80 N.Y.2d 483 (1992)...........................................19

Shumsky v. Eisenstein, 96 N.Y.2d 164 (2001).........................................14

Tzolis v. Wolff, 10 N.Y.3d 100 (2008).......................................................19

Other jurisdictions

Dillon v. Legg, 68 Cal. 2d 728 (1968)........................................................22

TREATISES, PRACTICE GUIDES, AND COMMENTARY

ABA, Criminal Justice Standards for the Defense Function

§ 4-9.1(c) (2015).......................................................................................4, 18

Bacon, Of Counsel, in The Essays of Francis Bacon (1846)...................13

New York State Bar Assn., Revised Standards for Providing

Mandated Representation.....................................................................4, 18

New York State Offce of Indigent Legal Services Appellate

Standards and Best Practices......................................................................4

Offce of the Clerk of the New York Court of Appeals,

The New York State Court of Appeals Criminal Leave

Application Practice Outline, p. 1 (2018)............................................3, 18

W. Page Keeton et al., Prosser and Keeton on the Law of

Torts 56 (5th ed. 1984)................................................................................22

Toby J. Stern, Comment, Federal Judges and Fearing the

Floodgates of Litigation, 6 U. Pa. J. Const. L. 377 (2003)......................22

iv

STATEMENT OF INTEREST OF AMICUS CURIAE

The New York County Lawyers Association (“NYCLA”) is a

not-for-proft organization founded in 1908 as one of the frst major

bar associations in the country that admitted members without

regard to race, ethnicity, religion or gender. Since its inception, it has

pioneered some of the most far-reaching and tangible reforms in

American jurisprudence and has continuously played an active role

in legal developments and public policy. NYCLA’s Appellate Courts

Committee is committed to promoting access to appellate review,

and to furthering the effciency and effectiveness of New York’s

appellate courts.1

In this appeal, the government argues that, even if Appellant’s

counsel was ineffective for violating a leave-application deadline, this

Court should nevertheless bar relief because he did not act diligently

in discovering his lawyer’s error. Because this proposed due

diligence rule would curtail access to the appellate courts and

undermine the fairness of the appellate process, the NYCLA

Appellate Courts Committee has a direct interest in this case.

Specifcally, we ask that the Court reject a due diligence requirement.

1 This amicus brief has been approved by NYCLA’s Appellate Courts Committee and approved for fling by NYCLA’s President; it has not be reviewed by NYCLA’s Executive Committee and does not necessarily represent the views of its Board.

1

SUMMARY OF ARGUMENT

This Court should reject a common-law rule barring ineffective

assistance claims on the grounds that the defendant did not exercise

“due diligence” in investigating and analyzing counsel’s blunders—

here, the failure to fle a timely leave application. See C.P.L.

§ 460.10(5)(a) (counsel must fle a leave application within 30 days of

an Appellate Division order in order to seek permission to appeal);

C.P.L. § 460.30(1) (establishing a one-year “grace period” for fling a

late leave application).

A due diligence rule illogically requires the accused to suffer the

consequences of counsel’s ineptitude. And it would unfairly punish

vulnerable defendants, leaving them without a remedy for a

constitutional injury. Likely for that very reason, the Legislature has

never required that defendants asserting ineffective assistance of

counsel must exercise “due diligence” in investigating their own

lawyers' compliance with professional obligations. See C.P.L.

§§ 440.10(1), 440.20(1).

Although Mr. Grimes exercised due diligence here, see

Appellant’s Brief 15-19 (Mr. Grimes, who was incarcerated, wrote to

counsel about the status of the leave application just over a year after

2

counsel promised to fle a leave application), a narrow holding that

Mr. Grimes satisfed an illogical “due diligence” rule will perpetuate

that fawed rule. Thus, it is essential that this Court, in setting the law

of New York and protecting constitutional rights, categorically reject

that rule once and for all. Reed v. McCord, 160 N.Y. 330, 335 (1899)

(this Court was created to “authoritatively declare and settle the law

uniformly throughout the state”); Crawford v. Washington, 541 U.S.

36 (2004) (“readily conced[ing]” that the Court could resolve the

defendant’s Sixth Amendment claim in defendant’s favor by

applying the fawed rule of Ohio v. Roberts, 448 U.S. 56 (1980), but

nevertheless categorically overruling Roberts because anything less

would “perpetuate” a fawed regime).

As for the merits question presented here, we agree with Mr.

Grimes that counsel was ineffective for failing to comply with the

deadline for fling a leave application. N.Y. Const. Art. I § 6; Offce of

the Clerk of the New York Court of Appeals, The New York State

Court of Appeals Criminal Leave Application Practice Outline, p. 1

(2018) (“The rules of all four Departments of the Appellate Division

require [counsel] to advise defendants of their right to appeal, and to

timely fle an application for leave to appeal to the Court of

Appeals . . . if the defendant requests that such application be made.

3

Thus, even [if] counsel [has] no intention of pursuing an appeal to

this Court[,] [counsel] must be familiar with the procedure for timely

fling a Criminal Leave Application, as it is part of that counsel’s

representation responsibilities.”).2 Amicus will not address that point

further.

2 Fourth Department Rules: 22 N.Y.C.R.R. § 1015.7(b) (“Counsel shall ascertain whether defendant wished to apply for permission to appeal and, if so, make timely application therefor.”); Second Department Rules: 22 N.Y.C.R.R. § 671.3(a)(same); Third Department Rules: 22 N.Y.C.R.R. § 821.2(a) (same); 22 N.Y.C.R.R. § 606.5(b)(2); New York State Bar Assn., Revised Standards forProviding Mandated Representation, I-10(h) (eff. 2015) (counsel has an obligation to fle a leave application); New York State Offce of Indigent Legal Services Appellate Standards and Best Practices, Section XV (eff. 2015) (“If theintermediate appellate court does not grant the full relief sought, counsel mustmake an application for leave to appeal to the Court of Appeals, unless the clientinstructs counsel not to do so.”); ABA Defense Function Standards 4-9.1(c) (2015) (“Defense counsel should take whatever steps are necessary to protect the client'srights of appeal.”); New York Rules of Professional Conduct Rule 1.3(a) (“A lawyer shall act with reasonable diligence and promptness in representing a client.”); id. at Rule 1.3(b) (“A lawyer shall not neglect a legal matter entrusted to the lawyer.”); id. at Rule 1.3, Comment [3] (“Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed.”).

4

STATEMENT OF THE CASE

On March 2, 2012, Mr. Grimes was convicted of felonies and

sentenced to prison time. Appellant’s Brief 3. The chronology of Mr.

Grimes’s appeal is as follows:

• November 13, 2015: The Appellate Division affrmed Mr.Grimes’s convictions.

• November 19, 2015: Appellate counsel receives decisionwith Notice of Entry (served on November 17, 2015).

• November 20, 2015: Appellate counsel wrote a letter to Mr.Grimes informing him that his convictions had beenaffrmed and told Mr. Grimes that counsel would apply forleave to appeal to this Court.

• December 19, 2015: The 30-day deadline for fling a leaveapplication expired. C.P.L. § 460.10(5)(a).

• November 23, 2016: Mr. Grimes was released from prison.

• December 19, 2016: C.P.L. § 460.30’s one-year-and-thirty-daydeadline for fling a late leave application elapsed.

• January 9, 2017: Mr. Grimes wrote appellate counsel askingabout his appeal.

• January 20, 2017: After appellate counsel informed Mr.Grimes that he had failed to fle a leave application due tolaw-offce failure, Mr. Grimes moved for permission to fleoutside of C.P.L. § 460.30’s deadline, claiming counsel’sfailure to comply with the deadline was ineffectiveassistance of counsel.

Appellant’s Brief 3-5.

The government now contends that even if counsel was

ineffective, this Court should reject relief because Mr. Grimes did not

5

exercise due diligence by personally investigating and detecting

counsel’s blunder before January 2017. Respondent’s Brief 21-23.

6

ARGUMENT

This Court should reject a common-law rule

that would require defendants to

“diligently” investigate counsel’s

compliance with his/her professional

obligations in order to obtain relief for

ineffective assistance of counsel.

The prosecution proposes a common-law rule barring ineffective

assistance of counsel relief because the defendant did not “diligently”

investigate counsel’s ineptitude. Respondent’s Brief 21-23. While

previously suggesting such a common-law rule in dicta, this Court

has never actually held that “due diligence” is required. People v.

Arjune, 30 N.Y.3d 347, 361 (2017); People v. Andrews, 23 N.Y.3d 605,

615-16 (2014); People v. Rosario, 26 N.Y.3d 597, 604 (2015).

This Court should now reject that rule. A due diligence bar is

illogical, violates the core principles underlying the right to counsel,

clashes with the Legislature’s rejection of such a requirement in

numerous other circumstances, and will produce arbitrary results in

our appellate courts.

* * *

In People v. Syville, 15 N.Y.3d 391, 397-98 (2010), this Court held

that when counsel’s failure to comply with C.P.L. § 460.10(1)’s notice-

7

of-appeal deadlines constitutes ineffective assistance, the

Constitution requires that the courts excuse the procedural default.

Syville’s holding hardly broke new ground; it built on a wide body of

state and federal precedent confrming that when the failure to

comply with procedural rules constitutes ineffective assistance, the

State cannot “mak[e] [a] defendant suffer for his attorney’s failing.”

People v. Montgomery, 24 N.Y.2d 130, 132 (1969); Syville, 15 N.Y.3d

at 397 (citing Evitts v. Lucey, 469 U.S. 387, 391-97 (1985) (a state

cannot enforce an appellate procedural rule against a defendant

when the failure to comply with that rule constitutes ineffective

assistance of counsel)); Martinez v. Ryan, 566 U.S. 1, 12 (2012)

(because the right to effective assistance of counsel is a “bedrock

principle in our justice system,” counsel’s unreasonable failure to

raise a claim in a post-conviction proceeding will not bar a defendant

from raising that claim in habeas court); Murray v. Carrier, 477 U.S.

478, 488 (1986) (“[I]f the procedural default is the result of ineffective

assistance of counsel, the Sixth Amendment itself requires that

responsibility for the default be imputed to the State,” not the

defendant); People v. Montgomery, 24 N.Y.2d 130, 132 (1969) (there is

“no justifcation for making [a] defendant suffer for his attorney’s

failing”). As held in Coleman v. Thompson, 501 U.S. 722, 754 (1991),

8

“Where a petitioner defaults a claim as a result of the denial of the

right to effective assistance of counsel, the State, which is responsible

for the denial as a constitutional matter, must bear the cost of any

resulting default and the harm to state interests that [appellate]

review entails.”

Nevertheless, dicta from this Court’s recent cases suggests that the

State need not “bear the cost of” counsel’s ineffective assistance if the

defendant did not “diligently” investigate that constitutional claim.

Arjune, 39 N.Y.3d at 361; Andrews, 23 N.Y.3d at 615-16; Rosario, 26

N.Y.3d at 604.

This Court should now reject that dicta and hold that there is no

“due diligence” requirement governing the litigation of ineffective

assistance claims stemming from the failure to comply with Article

460’s fling deadlines.

A. This Court has never held that due diligence can

bar a meritorious ineffective assistance of counsel

claim.

I n Andrews, Arjune, and Rosario, this Court held that counsel’s

failure to fle a notice of appeal (Andrews and Rosario) and assist

with an application for assignment of appellate counsel (Arjune) did

not constitute ineffective assistance. Andrews, 23 N.Y.3d at 615

9

(counsel specifcally confrmed that he spoke to defendant about

appealing and defendant instructed him not to fle notice of appeal);

Arjune, 30 N.Y.3d at 350 (“Because defendant has not met his burden

of proving that counsel was ineffective, we decline to

expand Syville under the circumstances presented here.”); Rosario, 26

N.Y.3d at 603-04 (“Simply put, defendants here failed to show that

their attorneys were unconstitutionally ineffective and therefore they

are not entitled to the relief they seek.”)

Having made those constitutional determinations, Arjune,

Rosario, and Andrews added, in dicta, that, “[i]n order to obtain

exceptional relief beyond the time permitted under C.P.L. § 460.30, a

defendant must show that he exercised due diligence.” Rosario, 26

N.Y.3d at 604; Arjune, 30 N.Y.3d at 358-59; Andrews, 23 N.Y.3d at 616

(“Nor did Andrews attempt to explain why he waited more than two

years to seek coram nobis relief after he obtained an attorney to

represent him on collateral review.”); C.P.L. § 460.30(1) (permitting a

defendant to fle a late notice of appeal “not more than one year”

after the 30-day notice-of-appeal deadline expires). Because this

Court, in Arjune, Rosario, and Andrews, found that counsel was

effective, commentary regarding due diligence was unnecessary to

the resolution of those appeals. That commentary was dicta. E.g.,

10

Saratoga County Chamber of Com., Inc. v. Pataki, 100 N.Y.2d 801, 824

(2003). And that dicta should now be disavowed.

B. A due diligence rule—which requires lay

defendants to investigate and monitor counsel’s

compliance with professional mandates—unfairly

and illogically forces defendants to suffer the

consequences of ineffective assistance.

A due diligence rule unfairly requires lay defendants to

understand the law and its procedural nuances. The rule therefore

collides with the right to counsel itself, which is rooted in the basic

recognition that even “the intelligent and educated layman has small

and sometimes no skill in the science of law.” Gideon v. Wainwright,

372 U.S. 335, 344-45 (1963); Halbert v. Michigan, 545 U.S. 605, 621

(2005) (“Navigating the appellate process without a lawyer’s

assistance is a perilous endeavor for a layperson, and well beyond the

competence of individuals, like [petitioner], who have little

education, learning disabilities, and mental impairments.”).

For instance, to employ “due diligence” in investigating counsel’s

compliance with C.P.L. § 460.10(5)(a)’s leave-application deadlines,

the lay defendant must:

• Know the time limits imposed by C.P.L.§ 460.10(5)(a) and § 460.30(1);

11

• Know that, even though the governingstatutes do not say so, Syville excuses theprocedural default if it stems from ineffectiveassistance of counsel; and

• Investigate and monitor his/her attorney’scompliance with the professional obligation tocomply with fling deadlines.

Further, when counsel has, as in Mr. Grimes’ case, promised to fle

a leave application, defendants must know the amount of time it

“typically” takes an application to be decided in order to begin the

investigation.3 If an appellate judge determines that the defendant

“waited too long” before investigating counsel’s performance, the

defendant loses access to the appellate forum.

A due diligence rule also illogically requires clients to make sure

their lawyers do their jobs. Strickland v. Washington, 466 U.S. 668,

688, 689 (1984) (there is a presumption that counsel will comply with

their “basic duties”). Under Article I § 6’s right to counsel—and a

basic understanding of an attorney’s role—the client has no

obligation to double-check the work of the legal professional charged

with protecting the client’s interests. E.g., Matter of Cooperman, 83

N.Y.2d 465, 471-72 (1994) (“Sir Francis Bacon observed, ‘[t]he

greatest trust between [people] is the trust of giving counsel.’ This

3 In our experience, criminal leave applications can remain pending for more than a year.

12

unique fduciary reliance, stemming from people hiring attorneys to

exercise professional judgment on a client’s behalf—‘giving

counsel’—is imbued with ultimate trust and confdence. The

attorney’s obligations, therefore, transcend those prevailing in the

commercial market place. The duty to deal fairly, honestly and with

undivided loyalty superimposes onto the attorney-client relationship

a set of special and unique duties, including . . . operating

competently . . . .”) (quoting Bacon, Of Counsel, in The Essays of

Francis Bacon, at 181 (1846)).

A defendant’s ability to personally investigate counsel’s

compliance with Article 460 deadlines would also be complicated by

the fact that ineffective counsel would still represent the defendant

before, during, and after the blunder occurred. A defendant’s

investigatory prodding could damage the attorney-client

relationship. In the law governing legal malpractice, this concern is

signifcant enough to toll the statute of limitations until the lawyer’s

representation of the injured client ends:

The continuous representation doctrine, like thecontinuous treatment rule, its counterpart with respect tomedical malpractice claims, “recognizes that a personseeking professional assistance has a right to reposeconfdence in the professional’s ability and good faith,and realistically cannot be expected to question andassess the techniques employed or the manner in which

13

the services are rendered.” The doctrine also appreciatesthe client’s dilemma if required to sue the attorney whilethe latter's representation on the matter at issue isongoing: “Neither is a person expected to jeopardize hispending case or his relationship with the attorneyhandling that case during the period that the attorneycontinues to represent the person. Since it is impossible toenvision a situation where commencing a malpractice suitwould not affect the professional relationship, the rule ofcontinuous representation tolls the running of the Statuteof Limitations on the malpractice claim until the ongoingrepresentation is completed.”

Shumsky v. Eisenstein, 96 N.Y.2d 164, 167-68 (2001) (emphasis

added) (quoting Greene v. Greene, 56 N.Y.2d 86, 94 (1982) and

Glamm v. Allen, 57 N.Y.2d 87, 94 (1982)).

Defendants who trust “presumptively effective” counsel,

Strickland, 466 U.S. at 688, 689, may very well fail to exercise due

diligence precisely because they trust their lawyers. Thus, a due

diligence bar undercuts the natural intuition that “a person seeking

professional assistance has a right to repose confdence in the

professional’s ability and good faith, and realistically cannot be

expected to question and assess the techniques employed or the

manner in which the services are rendered.” Greene, 56 N.Y.2d at 94.

This is especially true of a person who is in prison, and whose only

channel of information about his appeal is his lawyer.

14

Here, Mr. Grimes’s leave application was not timely fled precisely

because he trusted counsel and lacked information about criminal

procedure. He should not be punished for trusting his lawyer or for

his unfamiliarity with procedural rules. Nor should frst-time

offenders, young people, uneducated people, non-English speakers,

and mentally ill or handicapped people—the defendants who are

least likely to question their attorneys’ professional judgment.

Indeed, the burden of discovering a lawyer’s previously

undiscoverable ineffectiveness would fall most heavily on the people

least able to navigate appellate procedure or “diligently” inquire into

their lawyers’ conduct.

As a due diligence rule is illogical, it’s not surprising that it simply

does not exist in any other context. Suppose, for instance, a defendant

informs counsel (days after his arrest) that the police performed an

unconstitutional search. Counsel, however, does not move to

suppress within 45 days of arraignment. C.P.L. § 255.20(1)

(suppression motions must be made within 45 days of arraignment).

The case remains in a pretrial posture for years and the defendant

does not “diligently” investigate counsel’s error before trial. No one

would seriously argue (and to our knowledge no one ever has) that

15

this defendant has “waived” the ineffective assistance claim, thus

precluding him from raising the claim on direct appeal.

Similarly, coram nobis petitions alleging ineffective assistance of

appellate counsel are not encumbered by a due diligence rule. See

generally People v. Bachert, 69 N.Y.2d 593, 600 (1987) (explaining that

the courts and legislature can adopt procedural rules governing the

litigation of ineffective assistance of appellate counsel claims; to date,

no such procedural rules have been promulgated); People v.

D’Alessandro, 13 N.Y.3d 216, 221 (2009) (“[A]lthough we

acknowledge that a signifcant period of time has passed since

defendant’s conviction was affrmed on appeal, we should not allow

the lengthy passage of time, in itself, to bar review of a defendant’s”

ineffective assistance of appellate counsel claim). There is no

requirement that the defendant scrutinize appellate counsel’s brief

with diligence lest he lose an ineffective assistance claim forever. Yet

that is precisely the result of the due diligence bar proposed here.

At bottom, though, a due diligence bar ignores a precedential

juggernaut of state and federal law confrming that when a defendant

“defaults a claim as a result of the denial of the right to effective

assistance of counsel, the State, which is responsible for the denial as

a constitutional matter, must bear the cost of any resulting default

16

and the harm to state interests that [appellate] review entails.”

Coleman, 501 U.S. at 754 (emphasis added); Montgomery, 24 N.Y.2d

at 132; Syville, 15 N.Y.3d at 397; see generally Evitts, 469 U.S. at 391-

97; Martinez, 566 U.S. at 12; Murray, 477 U.S. at 488. A due diligence

procedural bar turns that longstanding rule on its head, placing the

“responsibility” for the lawyer’s failure, and its “cost,” right back on

the defendant.

Syville inadvertently laid the groundwork for this inversion.

Syville held that counsel was ineffective for failing to fle a notice of

appeal after the defendant had made a “timely request to fle [that]

notice.” 15 N.Y.3d at 397-400; id. at 397 (“When defense counsel

disregards a client’s timely request to fle a notice of appeal, the

attorney ‘acts in a manner that is professionally unreasonable.’ In

such a situation, a defendant justifably relies on the lawyer to carry

out the purely ministerial task of taking the frst step to preserve the

right to appellate review.”) (quoting Roe v. Flores-Ortega, 528 U.S.

470, 477 (2000)).

While Syville’s conclusion is correct, its expression of that holding,

which suggested that a defendant has an obligation to ask counsel to

comply with professional obligations (such as the obligation to fle a

notice of appeal), mistakenly suggested that the onus of protecting

17

appellate rights is on the client. On the contrary, blowing a deadline

because a client did not “request” compliance with the deadline is an

egregious dereliction of duty. E.g., Offce of the Clerk of the Court,

above, at 1; 22 N.Y.C.R.R. § 1015.7(a)-(b) (imposing a duty on counsel

to fle the notice of appeal and leave application); New York State Bar

Assn., Revised Standards for Providing Mandated Representation, I-

7(j) (eff. 2015) (after a conviction, counsel must fle a notice of appeal

unless the client make an informed waiver of the right); ABA,

Criminal Justice Standards for the Defense Function § 4-9.1(c)

(“Defense counsel should take whatever steps are necessary to

protect the client’s rights of appeal, including fling a timely notice of

appeal in the trial court, even if counsel does not expect to continue

as counsel on appeal.”). That is particularly true in the Article 460

context, which merely requires the “ministerial” fling of a notice of

appeal (C.P.L. § 460.10[1]; Syville, 15 N.Y.3d at 399), and later a short

leave application. C.P.L. § 460.10(5)(a).

Syville’s suggestion that a defendant must protect his own rights

also ignored Roe, which imposes an affrmative obligation on counsel

to fle a notice of appeal unless, after informed consultation, the

defendant instructs counsel not to do so. 528 U.S. at 475-481. Under

18

that holding, counsel cannot sit back and wait for client to “request”

that counsel act.

A due diligence rule carries forward and accents Syville’s

misreading of the authoritative understanding that navigating the

appellate process is, at bedrock, counsel’s obligation. And it does so

by foisting a punishing burden onto vulnerable people.

C. A common-law requirement that defendants must

exercise due diligence would clash with the

Legislature’s determination—in numerous other

contexts—that no such requirement exists.

No statute imposes a due diligence rule. Instead, the only possible

source for such a rule would be judge-made common law.

A common-law requirement that defendants exercise due

diligence in investigating counsel’s ineffectiveness would violate the

legislative policies expressed in Article 440. See generally Tzolis v.

Wolff, 10 N.Y.3d 100, 117 (2008) (“[T]he modern Legislature

reasonably expects the judiciary to respect its policy choices.”) (citing

Sherman v. Robinson, 80 N.Y.2d 483, 489 (1992) (“Given

the Legislature’s choice not to provide liability for [particular

conduct], we decline to expand the common law to impose such

liability.”)).

19

C.P.L. § 440.10(1)(h), the most common vehicle for the litigation of

ineffective assistance claims, imposes no due diligence requirement.

Instead, a defendant can assert such a claim “[a]t any time after the

entry of a judgment . . . .” C.P.L. § 440.10(1) (preamble); accord C.P.L.

§ 440.20(1) (“At any time after the entry of a judgment, the court in

which the judgment was entered may, upon motion of the defendant,

set aside the sentence upon the ground that it was unauthorized,

illegally imposed or otherwise invalid as a matter of law.”). A

common-law due diligence bar in the Article 460 context would,

therefore, disturb the Legislature’s policy judgment that ineffective

assistance claims are not subject to a due diligence rule.

Similarly, C.P.L. § 440.10(1)(g), which requires that a newly-

discovered-evidence claim be “made with due diligence after the

discovery of such alleged new evidence” (emphasis added), does not

require that the defendant exercise due diligence in investigating

whether new evidence exists. Nevertheless, Respondent asks this

Court to craft a common-law rule that would impose that precise

mandate for the investigation of constitutional claims.

Respondent’s proposal would also create an arbitrary regime:

Defendants alleging that counsel was ineffective for failing to comply

with Article 460’s deadlines must exercise due diligence, while

20

defendants asserting every other kind of ineffective assistance of

counsel need not. This random regime makes little sense. If anything,

the rule should be the other way around, as the failure to fle a notice

of appeal/leave application results in the “even more serious denial

of the entire judicial proceeding itself.” Roe, 528 U.S. at 483.

D. A due diligence rule is unworkable.

A fimsy due diligence rule is unworkable. When should a

“reasonably diligent defendant” begin second-guessing the attorney’s

competence? Months after the Appellate Division’s affrmance? A

year later? Two years later? Does due diligence consider the personal

characteristics of a defendant? If a defendant is educated and has

resources, is that defendant’s obligation greater than an uneducated

poor defendant’s obligation?

The Appellate Division departments, faced with deciding what

constitutes due diligence on a case-by-case basis, would inevitably

produce inconsistent rulings.

E. Rejecting a due diligence rule will not

meaningfully undermine state interests.

As counsel has an ethical, professional, and reputational interest in

complying with Article 460’s deadlines—and as doing so is rather

simple—ineffective assistance claims in this context will be rare.

21

Therefore, there will not be a deluge of coram nobis litigation in the

absence of a due diligence bar.

In any event, this Court should not shut the courthouse door

because the State has violated the constitutional rights of “too many”

defendants. See, e.g., People v. Tiger, __ N.Y.3d __, 2018 N.Y. Slip Op.

04377, *13 (June 14, 2018) (Wilson, J., dissenting) (“The majority is

focused on the importance of the fnality of the plea process, and the

appropriate conservation of judicial resources. Those concerns are

weighty. But ‘conservation of judicial resources’ does not appear

alongside ‘life, liberty and the pursuit of happiness.’”); Toby J. Stern,

Comment, Federal Judges and Fearing the Floodgates of Litigation, 6

U. Pa. J. Const. L. 377, 395 (2003) (“[T]he foodgates argument has

structural problems: it fosters inconsistencies between judges, usually

has no explicit factual basis, is ancillary to the central holding of a

case, and has a high potential for misuse.”); W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts 56 (5th ed. 1984) (“It is the

business of the law to remedy wrongs that deserve it, even at the

expense of a food of litigation.”); Dillon v. Legg, 68 Cal. 2d 728, 735

n. 3 (1968) (en banc) (“To the extent that this argument shades into

the contention that such claims should be denied because otherwise

courts would experience a food of litigation, we point out that courts

22

are responsible for dealing with cases on their merits, whether there

be few suits or many; the existence of a multitude of claims merely

shows society's pressing need for legal redress.”).

The prosecution in Syville also suggested another concern:

Defendants may strategically delay ineffective assistance claims so

that they can, if successful on the coram nobis petition and then the

ultimate appeal, beneft from stale evidence at the new proceeding.

Syville, 15 N.Y.3d at 401 n. 4.

This strained speculation is absurd. Certainly it has not captivated

the Legislature—the body charged with protecting the Penal Law—

which has not required due diligence in Article 440. See Point C,

above. And throughout Article 440’s almost 50 years of existence, 440

courts have not been plagued by dilatory defendants who

strategically allow their convictions to remain intact under the hope

that evidence may grow stale. See Brentwood Academy v. Tennessee

Secondary School Athletic Ass’n, 531 U.S. 288, 304 (2001) (rejecting a

foodgates argument because experience had proven that theory

wrong). On the contrary, defendants have ample incentive to pursue

relief quickly as criminal convictions work devastating consequences.

23

It is also highly improbable that rejecting a due diligence rule

would force the prosecution into a stale-evidence position. For that

problem to arise, the following conditions would have to be met:

1. The defendant must succeed on the merits of theineffective assistance of counsel claim.

2. The relief obtained must be vacatur of a conviction,not modifcation of the sentence or dismissal.

3. The prosecution’s evidence would actually have tobe stale as a result of the defendant’s delay.

4. The defendant is guilty (staleness is certainly not aconcern when the defendant is actually innocent).

Given this improbable constellation of factors, a staleness concern

is overblown.

In the end though, it is irrelevant whether permitting relief for a

constitutional violation will undermine the State’s interest in further

prosecution. “Where a petitioner defaults a claim as a result of the

denial of the right to effective assistance of counsel, the State, which

is responsible for the denial as a constitutional matter, must bear the

cost of any resulting default and the harm to state interests that

[permitting further] review [would] entail.” Coleman, 501 U.S. at 754

(emphasis added). Although signifcant, the State’s interest in the

successful prosecution of crime “occupies a lower place in the

American pantheon of noble objectives than” the “bedrock” right to

24

effective assistance of counsel. Maryland v. King, 569 U.S. 435, 480

(2013) (Scalia, J., dissenting); Martinez, 566 U.S. at 12; Melendez-Diaz

v. Massachusetts, 557 U.S. 305, 325 (2009) (the Sixth Amendment

“may make the prosecution of criminals more burdensome, but that

is equally true of the right to trial by jury and the privilege against

self-incrimination. The [Amendment]—like those other constitutional

provisions—is binding, and we may not disregard it at our

convenience.”). Rejecting constitutional claims because of a

speculative stale-evidence concern would ignore that fundamental

reality.

* * *

The law should not punish a defendant who relies on counsel to

perform adequately in an opaque system woven from complex

rules―about which the defendant likely knows nothing―simply

because the defendant did not discover counsel’s blunders through

independent investigation. This punishing rule, which would

inevitably lead to arbitrary justice, cannot be tolerated. This Court

should reject a due diligence rule.

25

CONCLUSION

This Court should reject a due diligence rule and permit Mr.

Grimes to fle a leave application with this Court.

Respectfully Submitted,

MATTHEW BOVA

WILLIAM D. BUCKLEY

SCOTT M. DANNER

DANA E. HEITZ

Attorneys for Amicus Curiae

New York County Lawyers Association

Committee on Appellate Courts

By: ____________________

Dana E. Heitz

Of Counsel

August 31, 2018

26

WORD-COUNT CERTIFICATION

The body of this brief contains 5008 words.

27