§ 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\nin which a death sentence may be imposed. 1. Notwithstanding any other\nprovision of law to the contrary, in every criminal action in which a\ndefendant is charged with murder in the first degree as defined in\nsection 125.27 of the penal law, or in any criminal action in which a\ndefendant is charged with murder in the second degree as defined in\nsection 125.25 of the penal law and the district attorney confirms upon\ninquiry by the court that the district attorney is undertaking an\ninvestigation to determine whether the defendant can or should be\ncharged with murder in the first degree as defined in section 125.27 of\nthe penal law and the court determines that there is a reasonable\nlikelihood the defendant will be so charged, if the defendant is or\nbecomes financially unable to obtain adequate representation or\ninvestigative, expert or other reasonably necessary services at any time\neither (a) prior to judgment, or (b) after the entry of a judgment\nimposing a sentence of death but before final resolution of a direct\nappeal pursuant to subdivision one of section 450.70 of the criminal\nprocedure law and of an appeal pursuant to subdivision two or three of\nsection 450.70 of the criminal procedure law from an order denying an\ninitial post judgment motion pursuant to section 440.10 or 440.20 of the\ncriminal procedure law, the defendant shall be entitled to the\nappointment of counsel and investigative, expert and such other\nreasonably necessary services in accordance with the provisions of this\nsection. Prior to the appointment of counsel pursuant to this section,\nthe court shall determine whether the defendant is or has become\nfinancially unable to obtain adequate representation. In the event such\ndefendant seeks to file any subsequent motion, he or she shall not be\neligible for the appointment of counsel pursuant to this section.\n 2. The appointment of counsel shall be made by the trial court if made\nprior to the entry of a judgment including a sentence of death or by the\ncourt of appeals, except as otherwise provided in this subdivision, if\nmade after the entry of a judgment including a sentence of death. With\nrespect to counsel at trial and at a separate sentencing proceeding, the\ncourt shall appoint two attorneys, one to be designated "lead" counsel\nand the other to be designated "associate" counsel. The appointment of\nany such counsel shall be made from a list of four proposed teams of\nqualified lead and associate counsel provided to the appropriate court\nby the capital defender office. Alternatively, the court may, with the\nconsent of the capital defender office, appoint the office to represent\nthe defendant. At least one of the proposed teams of qualified lead and\nassociate counsel on any list submitted pursuant to this subdivision\nshall regularly practice within the judicial department in which the\ndefendant has been charged. With respect to a jurisdiction in which the\ncapital defender office has entered into an agreement to provide\nrepresentation with a legal aid society, office of public defender or\nother not-for-profit organization providing criminal defense services,\nthe capital defender office may designate the society, public defender\nor organization for appointment as counsel pursuant to this section and\nneed not submit a list of four proposed teams of qualified lead and\nassociate counsel for appointment. In the event that counsel is not\nappointed pursuant to the foregoing provisions of this subdivision, the\ncourt may appoint any attorney whose name appears on a roster\nestablished pursuant to subdivision five of this section for appointment\nas lead or associate counsel. In the event no such attorney is\navailable, the court may appoint an attorney eligible for appointment\npursuant to article eighteen-B of the county law who is competent to\nrepresent defendants charged with murder and other serious felonies.\nWith respect to an appeal from a judgment including a sentence of death,\nthe court of appeals shall assign lead counsel only, but for good cause\nshown, the court may assign associate counsel. With respect to an\ninitial motion pursuant to section 440.10 or 440.20 of the criminal\nprocedure law, and any appeal therefrom, the appropriate court shall\nassign lead counsel only. The trial court shall assign counsel in\nconnection with such a motion and the court of appeals shall assign\ncounsel in connection with any appeal therefrom.\n 3. There is hereby created a capital defender office, to be governed\nby a three member board of directors. No attorney who is employed as a\njudge, prosecutor or in a law enforcement capacity shall be eligible to\nserve on such board. The board members shall be appointed in the\nfollowing manner: one member shall be appointed by the chief judge of\nthe court of appeals, one member shall be appointed by the temporary\npresident of the senate and one member shall be appointed by the speaker\nof the assembly. Each member shall be appointed to serve a three year\nterm and vacancies shall be filled in the same manner as the original\nappointment. Members of the board shall receive no compensation but\nshall be reimbursed all reasonable and necessary expenses incidental to\ntheir duties.\n 4. Within the amounts appropriated therefor:\n (a) The board of directors shall have the authority to appoint a\ncapital defender, who shall have the authority in consultation with the\nboard of directors to hire attorneys as deputy capital defenders,\ninvestigators and such other staff as the capital defender and the board\nof directors deem necessary to effectuate the purposes of the capital\ndefender office.\n (b) The capital defender office shall be authorized as follows:\n (i) Upon appointment in accordance with the provisions of this\nsection, to act as counsel for defendants and to furnish such\ninvestigative, expert and other reasonably necessary services as the\ncapital defender deems appropriate;\n (ii) To provide legal or other advice or, to the extent not otherwise\navailable, any other assistance to counsel appointed pursuant to this\nsection;\n (iii) To provide investigative, expert or other reasonably necessary\nservices to defendants charged with murder in the first degree who are\nnot represented by the capital defender office, provided that such\ndefendants (A) are or have become financially unable to obtain adequate\ninvestigative, expert or other reasonably necessary services and are\nrepresented by counsel appointed pursuant to this section, and (B) have\nobtained pursuant to this section the approval of a trial court for the\nsame investigative, expert or other reasonably necessary services,\nprovided, however, that such defendants have not received such services\nfrom other sources;\n (iv) To determine, in consultation with the administrative board of\nthe judicial conference, proposed minimum standards for lead and\nassociate counsel in capital cases. In determining the minimum\nstandards, the capital defender office in consultation with the\nadministrative board of the judicial conference shall consider among\nother factors both the needs of the state for an adequate number of\nattorneys to represent defendants in capital cases and the needs of\ndefendants in capital cases for competent counsel. The minimum\nstandards, and any modifications thereto which the capital defender\noffice in consultation with the administrative board of the judicial\nconference may from time to time propose, shall be submitted for\napproval to the court of appeals. Prior to approving the minimum\nstandards and any modifications thereto the court shall invite the\nsubmission of written comments from interested parties;\n (v) To provide continuing legal education, training, advice and\nassistance to attorneys representing or seeking to represent defendants\nin capital cases; and\n (vi) To enter into an agreement with a legal aid society, office of\npublic defender or other not-for-profit organization providing criminal\ndefense services to designate and provide counsel pursuant to this\nsection. Any agreement shall require that the society, public defender\nor organization effectuate the purposes and provisions of this section\nand may be terminated by the capital defender office by serving notice\non the society, public defender or organization sixty days prior to the\neffective date of termination. Upon the termination of any agreement,\nthe representation provided by the society, public defender or\norganization shall continue until the proceeding is concluded or the\ncourt relieves the society, public defender or organization and appoints\nsuccessor counsel pursuant to this section. The capital defender office\nmay require such reports as it deems necessary in connection with such\nagreement and shall monitor compliance with its terms. A society,\npublic defender or organization which enters into an agreement pursuant\nto this section shall not be the exclusive provider of counsel within\nsuch society's, public defender's or organization's jurisdiction. In\nthe event that a defendant is not represented by such a society, public\ndefender or organization due to a conflict, counsel shall be appointed\nin accordance with the provisions of subdivision two of this section.\n 5. (a) A screening panel shall be established in each judicial\ndepartment consisting of four members, two of whom shall be appointed by\nthe board of directors of the capital defender office and two of whom\nshall be appointed by the presiding justice of each judicial department.\nEach screening panel shall establish and periodically update a roster of\nattorneys qualified for appointment as lead counsel or associate counsel\npursuant to the provisions of this section. The capital defender\noffice, in consultation with the administrative board of the judicial\nconference, shall promulgate regulations to provide that qualified\nattorneys whose names appear on such rosters and who wish to be\nappointed to represent defendants in capital cases, are given fair\nopportunity to receive such appointments. Each screening panel shall\nalso promulgate and periodically update, in consultation with the\nadministrative board of the judicial conference, a schedule of fees to\nbe paid attorneys pursuant to this section in each department, which\nschedule shall be subject to the approval of the court of appeals. Prior\nto approving fee schedules, the court shall invite the submission of\nwritten comments from interested parties. Fee schedules shall be\npromulgated and approved after reviewing the rates of compensation\ngenerally paid in the department to attorneys with substantial\nexperience in the representation of defendants charged with murder or\nother serious felonies, and shall be adequate to ensure that qualified\nattorneys are available to represent defendants eligible to receive\ncounsel pursuant to this section.\n (b) Each appellate division, in consultation with the screening panel,\nshall establish the rates of fees and expenses to be paid for expert,\ninvestigative and other reasonably necessary services pursuant to this\nsection.\n 6. (a) When a defendant has been charged in an accusatory instrument\nwith murder in the first degree as defined in section 125.27 of the\npenal law or with murder in the second degree as defined in section\n125.25 of the penal law, the district attorney shall notify the capital\ndefender office.\n (b) The clerk of the superior court wherein a judgment that includes a\nsentence of death has been entered and the clerk of the court of appeals\nupon an order affirming a judgment that includes a sentence of death\nshall notify the capital defender office of the judgment or order.\nNotice need not be given when the defendant has retained counsel of his\nor her own choosing or when appellate or post-conviction counsel has\nalready been appointed pursuant to this section and when counsel advises\nthat he or she will continue to act on the defendant's behalf.\n (c) Notice to the capital defender office required pursuant to\nparagraph (a) or (b) of this subdivision shall consist of telephone,\nfacsimile, E-mail or other prompt electronic means of notification\nforthwith, which shall be followed by first class mail notification\nwithin two business days of the charge, sentence or affirmance. The\nfailure to give notice shall not affect the validity of any indictment,\nconviction, judgment or order.\n 7. Whenever a defendant is charged with murder in the first degree, or\na defendant has been charged with murder in the second degree as defined\nin section 125.25 of the penal law and the court determines after\nconfirmation by the district attorney pursuant to subdivision one of\nthis section that there is a reasonable likelihood the defendant will be\ncharged with murder in the first degree and the defendant is financially\nunable to obtain counsel as determined by the court and an attorney has\nnot yet been appointed to represent such defendant pursuant to the\nprovisions of this section, the capital defender office may provide or\narrange to provide temporary legal representation to the defendant. No\narraignment shall be delayed on account of any representation to be\nprovided or arranged pursuant to this subdivision. Any temporary\nrepresentation provided pursuant to this subdivision shall cease upon\nthe court's appointment of an attorney pursuant to this section.\n 8. Whenever prior to entry of judgment a defendant is charged with\nmurder in the first degree, or a defendant has been charged with murder\nin the second degree as defined in section 125.25 of the penal law and\nthe court determines after confirmation by the district attorney\npursuant to subdivision one of this section that there is a reasonable\nlikelihood the defendant will be charged with murder in the first\ndegree, and the defendant is or becomes financially unable, as\ndetermined by the court, to obtain adequate investigative, expert or\nother reasonably necessary services and the court has not appointed the\ncapital defender office to represent the defendant, the trial court\nshall authorize the defendant's attorney to obtain such services on\nbehalf of the defendant and shall order the payment of reasonable fees\nand expenses therefor; provided, however, that the court shall first\nfind in an ex parte proceeding that such investigative, expert or other\nservices are reasonably necessary for the representation of the\ndefendant whether in connection with issues relating to guilt or\nsentencing. Upon a finding that timely procurement of such services\ncould not practicably await prior authorization, the court may authorize\nthe provision and payment for such services nunc pro tunc. Whenever a\ncourt disapproves, in whole or in part, a request for authorization or\nvoucher, the defendant may apply to a justice of an intermediate\nappellate court for an order approving the request or voucher.\n 9. Any compensation, fee or expense to be paid pursuant to this\nsection shall be a state charge payable on vouchers approved by the\ncourt which fixed the same, after audit by and on the warrant of the\ncomptroller. Each claim for compensation and reimbursement shall be\nsupported by a sworn statement specifying the time expended, services\nrendered, expenses incurred and reimbursement or compensation applied\nfor or received in the same case from any other source. With respect to\ncompensation to be paid to counsel pursuant to this section, the\nappropriate court shall review and determine the reasonableness of the\nnumber of hours expended out of court.\n 10. Whenever it appears that a defendant is financially able to obtain\nadequate representation or investigative, expert or other such services,\nor to make partial payment for such representation or other services,\ncounsel shall inform the court and the court may terminate the\nassignment of counsel or authorize payment, as the interests of justice\nmay dictate, to the capital defender office or the state.\n 11. The provisions of this section shall cease to apply on the tenth\nday, or such later day as the court may determine to be reasonably\nnecessary to provide for successor counsel if prior counsel is to be\nrelieved, following the entry of either a final judgment or order not\nsubject to further review by an appellate court, or a prosecutorial\ndetermination, which necessarily precludes an imposition of a sentence\nof death, whereupon the provisions of article eighteen-A or article\neighteen-B of the county law shall be applicable.\n 12. Nothing in this section shall be construed to authorize the\nappointment of counsel, investigative, expert or other services or the\nprovision of assistance, other than continuing legal education, training\nand advice, with respect to the filing, litigation, or appeal of a\npetition for a writ of habeas corpus in any federal court; nor shall\nanything in this section be construed to authorize the appointment of\nattorneys, investigative, expert or other services in connection with\nany proceedings other than trials, including separate sentencing\nproceedings, of defendants charged with murder in the first degree,\nappeals from judgments including a sentence of death, and initial\nmotions pursuant to section 440.10 or 440.20 of the criminal procedure\nlaw and any appeals therefrom.\n