2021 New York Laws
JUD - Judiciary
Article 2 - General Provisions Relating to Courts and Judges
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.
