Allowing Ineffective Assistance of Counsel Claims via Post-Conviction Motions: New Law

New York’s overly restrictive rule that Ineffective Assistance of Counsel (IAC) claims depending solely on the record cannot be brought under Criminal Procedure Law Section (CPL) 440.10 has been repealed. The City Bar has supported and advocated for repeal of this rule since 2009 and applauds Governor Hochul and the Legislature for changing the law.

Prior to enactment of the new law, defendants could seek relief from a judgment of conviction in two ways. First, they could file, as of right, a direct appeal in the Appellate Division (for indicted offenses) or in the Appellate Term (for misdemeanors). On direct appeal, defendants could only raise issues that were based on facts already contained in the trial record. Second, defendants could file a motion to vacate the judgment pursuant to CPL. 440.10 (“collateral review”). That motion was filed in the trial court in which the judgment was obtained and could rely on factual allegations not contained in the trial record. Defendants could not appeal the denial of such a motion as of right, but had to seek permission to do so. 

As a corollary to these forum rules, under CPL 440.10, New York prohibited a defendant from raising, on collateral review, (1) any claim that the defendant could raise on appeal and (2) any claim that the defendant could have raised on appeal but failed to do so.  In other words, record-based claims had to be brought on direct appeal and claims that are nonrecord-based had to be brought collaterally. These rules applied to IAC claims – thus, on-the-record IAC claims had to be brought on direct appeal and IAC claims that rely on off-the-record facts had to be brought collaterally. This dichotomy has led to a great deal of confusion.

The City Bar, through its Criminal Justice Operations Committee and Criminal Courts Committee, have argued that the interests of justice and judicial economy would be better served by following the lead of the federal system and the majority of other states by permitting all IAC claims to be raised on collateral review.  The new law will promote fundamental fairness for defendants without increasing the burden on the court system generally or on trial courts in particular.

For a full list of bills supported by the City Bar during the 2021 NYS Legislative Session that have been enacted to date, click here.