N.Y. Judiciary Law § 35-b: Assignment of counsel and related services in criminal actions in which a death sentence may be imposed

§ 35-b. Assignment of counsel and related services in criminal actions

in which a death sentence may be imposed. 1. Notwithstanding any other

provision of law to the contrary, in every criminal action in which a

defendant is charged with murder in the first degree as defined in

section 125.27 of the penal law, or in any criminal action in which a

defendant is charged with murder in the second degree as defined in

section 125.25 of the penal law and the district attorney confirms upon

inquiry by the court that the district attorney is undertaking an

investigation to determine whether the defendant can or should be

charged with murder in the first degree as defined in section 125.27 of

the penal law and the court determines that there is a reasonable

likelihood the defendant will be so charged, if the defendant is or

becomes financially unable to obtain adequate representation or

investigative, expert or other reasonably necessary services at any time

either (a) prior to judgment, or (b) after the entry of a judgment

imposing a sentence of death but before final resolution of a direct

appeal pursuant to subdivision one of section 450.70 of the criminal

procedure law and of an appeal pursuant to subdivision two or three of

section 450.70 of the criminal procedure law from an order denying an

initial post judgment motion pursuant to section 440.10 or 440.20 of the

criminal procedure law, the defendant shall be entitled to the

appointment of counsel and investigative, expert and such other

reasonably necessary services in accordance with the provisions of this

section. Prior to the appointment of counsel pursuant to this section,

the court shall determine whether the defendant is or has become

financially unable to obtain adequate representation. In the event such

defendant seeks to file any subsequent motion, he or she shall not be

eligible for the appointment of counsel pursuant to this section.

2. The appointment of counsel shall be made by the trial court if made

prior to the entry of a judgment including a sentence of death or by the

court of appeals, except as otherwise provided in this subdivision, if

made after the entry of a judgment including a sentence of death. With

respect to counsel at trial and at a separate sentencing proceeding, the

court shall appoint two attorneys, one to be designated "lead" counsel

and the other to be designated "associate" counsel. The appointment of

any such counsel shall be made from a list of four proposed teams of

qualified lead and associate counsel provided to the appropriate court

by the capital defender office. Alternatively, the court may, with the

consent of the capital defender office, appoint the office to represent

the defendant. At least one of the proposed teams of qualified lead and

associate counsel on any list submitted pursuant to this subdivision

shall regularly practice within the judicial department in which the

defendant has been charged. With respect to a jurisdiction in which the

capital defender office has entered into an agreement to provide

representation with a legal aid society, office of public defender or

other not-for-profit organization providing criminal defense services,

the capital defender office may designate the society, public defender

or organization for appointment as counsel pursuant to this section and

need not submit a list of four proposed teams of qualified lead and

associate counsel for appointment. In the event that counsel is not

appointed pursuant to the foregoing provisions of this subdivision, the

court may appoint any attorney whose name appears on a roster

established pursuant to subdivision five of this section for appointment

as lead or associate counsel. In the event no such attorney is

available, the court may appoint an attorney eligible for appointment

pursuant to article eighteen-B of the county law who is competent to

represent defendants charged with murder and other serious felonies.

With respect to an appeal from a judgment including a sentence of death,

the court of appeals shall assign lead counsel only, but for good cause

shown, the court may assign associate counsel. With respect to an

initial motion pursuant to section 440.10 or 440.20 of the criminal

procedure law, and any appeal therefrom, the appropriate court shall

assign lead counsel only. The trial court shall assign counsel in

connection with such a motion and the court of appeals shall assign

counsel in connection with any appeal therefrom.

3. There is hereby created a capital defender office, to be governed

by a three member board of directors. No attorney who is employed as a

judge, prosecutor or in a law enforcement capacity shall be eligible to

serve on such board. The board members shall be appointed in the

following manner: one member shall be appointed by the chief judge of

the court of appeals, one member shall be appointed by the temporary

president of the senate and one member shall be appointed by the speaker

of the assembly. Each member shall be appointed to serve a three year

term and vacancies shall be filled in the same manner as the original

appointment. Members of the board shall receive no compensation but

shall be reimbursed all reasonable and necessary expenses incidental to

their duties.

4. Within the amounts appropriated therefor:

(a) The board of directors shall have the authority to appoint a

capital defender, who shall have the authority in consultation with the

board of directors to hire attorneys as deputy capital defenders,

investigators and such other staff as the capital defender and the board

of directors deem necessary to effectuate the purposes of the capital

defender office.

(b) The capital defender office shall be authorized as follows:

(i) Upon appointment in accordance with the provisions of this

section, to act as counsel for defendants and to furnish such

investigative, expert and other reasonably necessary services as the

capital defender deems appropriate;

(ii) To provide legal or other advice or, to the extent not otherwise

available, any other assistance to counsel appointed pursuant to this

section;

(iii) To provide investigative, expert or other reasonably necessary

services to defendants charged with murder in the first degree who are

not represented by the capital defender office, provided that such

defendants (A) are or have become financially unable to obtain adequate

investigative, expert or other reasonably necessary services and are

represented by counsel appointed pursuant to this section, and (B) have

obtained pursuant to this section the approval of a trial court for the

same investigative, expert or other reasonably necessary services,

provided, however, that such defendants have not received such services

from other sources;

(iv) To determine, in consultation with the administrative board of

the judicial conference, proposed minimum standards for lead and

associate counsel in capital cases. In determining the minimum

standards, the capital defender office in consultation with the

administrative board of the judicial conference shall consider among

other factors both the needs of the state for an adequate number of

attorneys to represent defendants in capital cases and the needs of

defendants in capital cases for competent counsel. The minimum

standards, and any modifications thereto which the capital defender

office in consultation with the administrative board of the judicial

conference may from time to time propose, shall be submitted for

approval to the court of appeals. Prior to approving the minimum

standards and any modifications thereto the court shall invite the

submission of written comments from interested parties;

(v) To provide continuing legal education, training, advice and

assistance to attorneys representing or seeking to represent defendants

in capital cases; and

(vi) To enter into an agreement with a legal aid society, office of

public defender or other not-for-profit organization providing criminal

defense services to designate and provide counsel pursuant to this

section. Any agreement shall require that the society, public defender

or organization effectuate the purposes and provisions of this section

and may be terminated by the capital defender office by serving notice

on the society, public defender or organization sixty days prior to the

effective date of termination. Upon the termination of any agreement,

the representation provided by the society, public defender or

organization shall continue until the proceeding is concluded or the

court relieves the society, public defender or organization and appoints

successor counsel pursuant to this section. The capital defender office

may require such reports as it deems necessary in connection with such

agreement and shall monitor compliance with its terms. A society,

public defender or organization which enters into an agreement pursuant

to this section shall not be the exclusive provider of counsel within

such society's, public defender's or organization's jurisdiction. In

the event that a defendant is not represented by such a society, public

defender or organization due to a conflict, counsel shall be appointed

in accordance with the provisions of subdivision two of this section.

5. (a) A screening panel shall be established in each judicial

department consisting of four members, two of whom shall be appointed by

the board of directors of the capital defender office and two of whom

shall be appointed by the presiding justice of each judicial department.

Each screening panel shall establish and periodically update a roster of

attorneys qualified for appointment as lead counsel or associate counsel

pursuant to the provisions of this section. The capital defender

office, in consultation with the administrative board of the judicial

conference, shall promulgate regulations to provide that qualified

attorneys whose names appear on such rosters and who wish to be

appointed to represent defendants in capital cases, are given fair

opportunity to receive such appointments. Each screening panel shall

also promulgate and periodically update, in consultation with the

administrative board of the judicial conference, a schedule of fees to

be paid attorneys pursuant to this section in each department, which

schedule shall be subject to the approval of the court of appeals. Prior

to approving fee schedules, the court shall invite the submission of

written comments from interested parties. Fee schedules shall be

promulgated and approved after reviewing the rates of compensation

generally paid in the department to attorneys with substantial

experience in the representation of defendants charged with murder or

other serious felonies, and shall be adequate to ensure that qualified

attorneys are available to represent defendants eligible to receive

counsel pursuant to this section.

(b) Each appellate division, in consultation with the screening panel,

shall establish the rates of fees and expenses to be paid for expert,

investigative and other reasonably necessary services pursuant to this

section.

6. (a) When a defendant has been charged in an accusatory instrument

with murder in the first degree as defined in section 125.27 of the

penal law or with murder in the second degree as defined in section

125.25 of the penal law, the district attorney shall notify the capital

defender office.

(b) The clerk of the superior court wherein a judgment that includes a

sentence of death has been entered and the clerk of the court of appeals

upon an order affirming a judgment that includes a sentence of death

shall notify the capital defender office of the judgment or order.

Notice need not be given when the defendant has retained counsel of his

or her own choosing or when appellate or post-conviction counsel has

already been appointed pursuant to this section and when counsel advises

that he or she will continue to act on the defendant's behalf.

(c) Notice to the capital defender office required pursuant to

paragraph (a) or (b) of this subdivision shall consist of telephone,

facsimile, E-mail or other prompt electronic means of notification

forthwith, which shall be followed by first class mail notification

within two business days of the charge, sentence or affirmance. The

failure to give notice shall not affect the validity of any indictment,

conviction, judgment or order.

7. Whenever a defendant is charged with murder in the first degree, or

a defendant has been charged with murder in the second degree as defined

in section 125.25 of the penal law and the court determines after

confirmation by the district attorney pursuant to subdivision one of

this section that there is a reasonable likelihood the defendant will be

charged with murder in the first degree and the defendant is financially

unable to obtain counsel as determined by the court and an attorney has

not yet been appointed to represent such defendant pursuant to the

provisions of this section, the capital defender office may provide or

arrange to provide temporary legal representation to the defendant. No

arraignment shall be delayed on account of any representation to be

provided or arranged pursuant to this subdivision. Any temporary

representation provided pursuant to this subdivision shall cease upon

the court's appointment of an attorney pursuant to this section.

8. Whenever prior to entry of judgment a defendant is charged with

murder in the first degree, or a defendant has been charged with murder

in the second degree as defined in section 125.25 of the penal law and

the court determines after confirmation by the district attorney

pursuant to subdivision one of this section that there is a reasonable

likelihood the defendant will be charged with murder in the first

degree, and the defendant is or becomes financially unable, as

determined by the court, to obtain adequate investigative, expert or

other reasonably necessary services and the court has not appointed the

capital defender office to represent the defendant, the trial court

shall authorize the defendant's attorney to obtain such services on

behalf of the defendant and shall order the payment of reasonable fees

and expenses therefor; provided, however, that the court shall first

find in an ex parte proceeding that such investigative, expert or other

services are reasonably necessary for the representation of the

defendant whether in connection with issues relating to guilt or

sentencing. Upon a finding that timely procurement of such services

could not practicably await prior authorization, the court may authorize

the provision and payment for such services nunc pro tunc. Whenever a

court disapproves, in whole or in part, a request for authorization or

voucher, the defendant may apply to a justice of an intermediate

appellate court for an order approving the request or voucher.

9. Any compensation, fee or expense to be paid pursuant to this

section shall be a state charge payable on vouchers approved by the

court which fixed the same, after audit by and on the warrant of the

comptroller. Each claim for compensation and reimbursement shall be

supported by a sworn statement specifying the time expended, services

rendered, expenses incurred and reimbursement or compensation applied

for or received in the same case from any other source. With respect to

compensation to be paid to counsel pursuant to this section, the

appropriate court shall review and determine the reasonableness of the

number of hours expended out of court.

10. Whenever it appears that a defendant is financially able to obtain

adequate representation or investigative, expert or other such services,

or to make partial payment for such representation or other services,

counsel shall inform the court and the court may terminate the

assignment of counsel or authorize payment, as the interests of justice

may dictate, to the capital defender office or the state.

11. The provisions of this section shall cease to apply on the tenth

day, or such later day as the court may determine to be reasonably

necessary to provide for successor counsel if prior counsel is to be

relieved, following the entry of either a final judgment or order not

subject to further review by an appellate court, or a prosecutorial

determination, which necessarily precludes an imposition of a sentence

of death, whereupon the provisions of article eighteen-A or article

eighteen-B of the county law shall be applicable.

12. Nothing in this section shall be construed to authorize the

appointment of counsel, investigative, expert or other services or the

provision of assistance, other than continuing legal education, training

and advice, with respect to the filing, litigation, or appeal of a

petition for a writ of habeas corpus in any federal court; nor shall

anything in this section be construed to authorize the appointment of

attorneys, investigative, expert or other services in connection with

any proceedings other than trials, including separate sentencing

proceedings, of defendants charged with murder in the first degree,

appeals from judgments including a sentence of death, and initial

motions pursuant to section 440.10 or 440.20 of the criminal procedure

law and any appeals therefrom.