New York Codes, Rules and Regulations
Title 22 - JUDICIARY
Subtitle B - Courts
Chapter I - Court of Appeals
Subchapter B - Rules And Standards In Capital Cases
Part 515 - Standards For Appellate And State Post-conviction Counsel In Capital Cases
Section 515.1 - Standards for appellate counsel in capital cases
Universal Citation: 22 NY Comp Codes Rules and Regs ยง 515.1
Current through Register Vol. 46, No. 39, September 25, 2024
(1) Appellate qualifications and experience.
(a) Sole
appellate counsel. To be eligible to be appointed as sole appellate counsel on
direct appeal in a capital case, an attorney must demonstrate that he or she:
(1) has at least five years of
criminal trial or criminal appellate or post-conviction experience, or has at
least three years of concentrated criminal litigation experience;
(2) is familiar with the
practice and procedure of the trial and appellate courts of New York, including
the New York Court of Appeals; and
(3) also has had primary responsibility
for the appeal of at least five felony convictions in any state or Federal
Court, at least three of which were on behalf of the defendant, and at least
three of which were orally argued by the attorney.
(b) Two appellate counsel. To
be eligible to be appointed as one of two appellate counsel on direct appeal in
a capital case:
(1) one attorney
must demonstrate that he or she has the qualifications set forth in subdivision
(a) of this section; and
(2) the second attorney must demonstrate
that he or she:
(i) has at least
three years of criminal litigation or post-conviction experience;
(ii) is familiar with the
practice and procedure of the trial and appellate courts of New York, including
the New York Court of Appeals; and
(iii) has had primary responsibility for
the appeal, in any state or Federal court, of at least three felony
convictions, at least one of which was on behalf of the defendant.
(c) Trial
counsel. If otherwise qualified under these standards, and with the consent of
the client, a defendant's capital trial counsel may seek to be appointed
capital appellate counsel on the same defendant's appeal.
(d) Waiver. If an attorney
cannot meet one or more of the requirements set forth above, the screening
panel, after consideration of the recommendation of the Capital Defender
Office, may waive such requirement by demonstration by the attorney that he or
she, by reason of extensive civil litigation and/or appellate experience or
other exceptional qualifications, is capable of providing effective
representation as appellate counsel in a capital case.
(2) Applications to Capital Defender Office.
(a)
Applications. In support of an application, an attorney shall submit to the
Capital Defender Office a form prescribed by the Capital Defender Office and
approved by the Administrative Board of the Courts. It shall require the
attorney to demonstrate that he or she has fully satisfied the requirements set
forth above. The attorney shall also identify any requirements that he or she
requests be waived, and shall set forth in detail his or her appellate
experience or other exceptional qualifications that justify waiver.
(b) Required submissions. In
support of an application, an attorney shall submit to the Capital Defender
Office:
(1) at least two
appellate briefs, written exclusively or primarily by the applicant, the
opposing briefs, and the decisions;
(2) descriptions of any capital or other
criminal appellate advocacy or other criminal practice program
attended;
(3) the
names, addresses and phone numbers of two prosecutors and two defense
attorneys, current or former, including at least one appellate adversary,
familiar with the applicant's work as an effective advocate;
(4) the applicant may submit
the name, address and phone number of one appellate judge, if the judge is
familiar with the applicant's work as an effective advocate; and
(5) any other material that may
be relevant to fully evaluate the applicant's appellate qualifications and
experience.
(3) Creation of Court of Appeals roster.
(a) Delivery to screening
panel. The Capital Defender Office shall review each application to determine
that it is complete. The Capital Defender Office shall deliver all completed
applications, within 30 days of their receipt, to the appropriate screening
panel, together with a statement setting forth the status of the attorney's
completion of the training required by section (5) below, and its
recommendations to the screening panel with respect to whether the attorney is
qualified for appointment as appellate counsel in a capital case. The
appropriate screening panel shall be the panel in the judicial department in
which the attorney has his or her principal office for the practice of
law.
(b) Designation
by screening panel. Within 30 days of receipt of the application, each
screening panel shall designate those attorneys deemed qualified for
appointment as appellate counsel in a capital case, and shall report those
designations to the Court of Appeals.
(c) Waiver or deferral of required
submissions. If an attorney cannot provide each of the above items, the
screening panel, upon demonstration that the attorney is capable of providing
effective representation as appellate counsel in a capital case, and after
consideration of the recommendation of the Capital Defender Office, may:
(1) defer submission of any
item(s) for a reasonable time, and in the interim designate the attorney as a
qualified appellate counsel; or
(2) waive such submission.
(d) Establishment of
the roster. The Court of Appeals shall incorporate the names of each attorney
found qualified by a screening panel into a single roster of attorneys
qualified for appointment as appellate counsel in a capital case.
(4) Additions to Court of Appeals roster.
(a)
Requests for reconsideration. Any attorney whose application for designation as
qualified appellate counsel is rejected by a screening panel may apply to the
Court of Appeals for reconsideration of his or her application pursuant to such
procedures as may be prescribed by the Court of Appeals.
(b) Determination by the Court
of Appeals. The Court of Appeals shall review each such application pursuant to
the criteria set forth in these standards, including consideration of the
recommendations of the Capital Defender Office and of the screening panel, and
may add that attorney to the roster of qualified appellate counsel if the court
deems the attorney qualified to serve as appellate counsel in a capital
case.
(5) Training.
(a) Certification. An
attorney shall not be eligible to be appointed as appellate counsel in a
capital case unless the Capital Defender Office shall certify that the attorney
satisfactorily has completed a capital appellate-advocacy course prescribed by
the Capital Defender Office and approved by the Administrative Board of the
Courts.
(b) Interim
certification. The screening panel, or the Court of Appeals, in its discretion,
my permit an attorney to be eligible for such appointment if the attorney meets
all of the other requirements for qualification and experience, and the Capital
Defender Office confirms that such attorney is in active pursuit of such
training and certification.
(6) Retention of eligibility.
(a) On-going training. To
remain eligible for appointment as counsel on a capital appeal, an attorney
must attend and successfully complete capital training sessions as prescribed
by the Capital Defender Office.
(b) Removal from the Court of Appeals
roster. The Court of Appeals may remove from its roster of attorneys any
attorney who, in the court's judgement, has not provided competent, thorough
representation.
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