2006 New York Code - 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.