New York Criminal Law and Procedure

Does an appellate attorney have a conflict of interest when the defendant wants him to pursue an IAC claim?

In People v. Jones (3d Dept. 2/25/2010) (Stein, J.), the Third Department unanimously rejected the defendant's ineffective assistance of counsel (IAC) claims.  The defendant initially complained that his attorney failed to make a motion to dismiss the indictment on grounds of impaired grand jury proceedings; the defendant claimed the proceeding was defective because he appeared at the grand jury in prison attire.  However, the Third Department noted that the defendant's allegations and the record did not demonstrate that the defendant was compelled to wear the prison clothing.  Moreover, the court noted that defense counsel, in his motion to dismiss the indictment, did "draw[] specific attention" to defendant's wearing a jail jumpsuit at the grand jury.

The defendant, pro se, also argued that, on appeal, his appellate attorney had a conflict of interest because the attorney had also represented him at trial.  Thus, the defendant argued that he had an inherent self-interest in not pursuing an IAC claim based on the facts that occurred at the trial court level.  The court applied a totality of the circumstances analysis and reasoned that the IAC claim was meritless where the defendant's appellate counsel displayed "a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument" (internal citations omitted). (JTR/LC)

COA - New Decisions

The Court of Appeals announced new decisions today:

• People v. Abney (Ct. App. 10/27/2009) (Read, J.) - expert testimony on eyewitness reliability
• People v. D'Alessandro (Ct. App. 10/27/2009 (Lippman, C.J.) - Appellate Division incorrectly decided defendant's subsequent coram nobis application as a motion for reargument of the original application.  Reversed and remanded for determination on the merits.

More on Abney later.  (LC)

Search of defendant's pocket unlawful ... but harmless error?

In People v. Lazcano (4th Dept. 10/2/2009), the Fourth Department affirmed the defendant's conviction for Assault in the Second Degree.  One of the issues was a search of the defendant in which a police officer, who did not testify at the suppression hearing, recovered a knife from the defendant's pocket.  The People established, through a fellow officer, that there was reasonable suspicion to stop the defendant and frisk him for weapons.  However, the testifying officer was unable to establish, to the court's satisfaction, that the searching officer was justified in reaching into the defendant's pocket.  The testifying officer's observations were insufficient to establish what, if anything, the searching officer may have felt during the frisk.

Nevertheless, the court concluded that the error was harmless because "there is no reasonable possibility that the court's error in refusing to suppress the knife might have contributed to the conviction."  We are not told much about the facts of the case---other than it was an assault prosecution---but I find it hard to believe that showing the jury a weapon recovered from the defendant would not have had some effect on the verdict.  Perhaps the only issue was justification/self-defense?  (LC)

SCIs and compliance with CPL § 195.10 (updated)

Felony defendants have a constitutional right to indictment by Grand Jury.  Certain violations of this constitutional right are jurisdictional in nature; thus, they serve a purported waiver and may even be raised for the first time on appeal. 

In certain cases, a defendant may waive indictment and enter a plea to a Superior Court Information.  There are four requirements, however, for this procedure: (1) it is not available if  the local criminal court accusatory instrument charged a Class A felony punishable by death or life imprisonment (i.e., not the A-I or A-II drug crimes); (2) the defendant must have been held for Grand Jury action by a local criminal court; (3) the District Attorney consents to the waiver; and (4) the various procedures (written waiver, etc.) of Article 195 have been complied with.  Regarding the second requirement, a defendant cannot be directly charged by an SCI.  In other words, it cannot be used as a substitute for a direct indictment.  A defendant may waive indictment only if he has first been charged in a local criminal court (but not a Class A felony).

Sometimes the record on appeal will be sketchy as to whether there were local criminal court proceedings.  Defendants on appeal may claim that the second requirement was not satisfied and, therefore, the purported waiver of indictment and SCI were invalid.  This was the issue raised in People v. Dennis (3d Dept. 10/1/2009).  The Third Department rejected the defendant's argument, finding that there was sufficient evidence that the defendant had been held for Grand Jury action.  First, the record indicated that the case had been transferred to County Court.  Thus, logically, it must have been transferred from a local criminal court.  Moreover, County Court's order approving the waiver and SCI indicated, albeit summarily, that CPL § 195.10 had been complied with.  These facts, coupled with the presumption of regularity accorded to judicial proceedings and the failure of the defendant to show contrary evidence, were sufficient to reject the defendant's claim on appeal.

Nevertheless, the better practice is for either the papers or, preferably, the record in Superior Court to indicate that the defendant had been held for Grand Jury action by a local criminal court.  Ideally the local criminal court should be named and a docket number provided for that underlying action.  Perhaps the prosecutor, before the waiver is executed in Superior Court, should state on the record, "Your Honor, the defendant before the court was previously charged, by felony complaint, in the local criminal court of ____, index number ____.  On ____, that court held the defendant for Grand Jury action.  Now, today, he desires to waive indictment and enter a plea to a Superior Court Information."  This simple recitation would make the record crystal clear and prevent any confusion on appeal.  (LC)

AD3 Details Reasons for Not Lowering Sentence in the Interest of Justice

Intermediate appellate courts have the power to reduce a defendant's sentence as an exercise of discretion and in the interest of justice, notwithstanding the legality of the sentence or the lack of abuse of discretion by the sentencing court.  See CPL § 470.15(6)(b).  Typically, an Appellate Division will state summarily either that it is or is not reducing in the interest of justice.  Rarely does the court explain why.

In People v. Williams (3d Dept. 9/24/2009), a unanimous panel of the Third Department affirmed a defendant's sentence of 1-to-3 years for Vehicular Manslaughter 2º and DWI.  In refusing to reduce the sentence, the court stated:

While we acknowledge that this Court has broad, plenary power to modify a sentence that it considers unduly harsh or severe, such is only done in extraordinary circumstances or where the trial court has abused its discretion, which we fail to find here. While there may have been mitigating factors present that County Court considered in issuing defendant's sentence, the presentence investigation report detailed her "self absorption" and "apparent indifference to the life she took." Thus, noting that it was considerably less than the possible maximum, we decline to disturb defendant's sentence.

(citations omitted).  (LC)

COA & AD1 - New Decisions

The Court of Appeals announced a new decision today in People v. Kolupa (Ct. App. 9/22/2009) (SSM), finding that the defendant failed to preserve his claim that the People did not corroborate a child victim's testimony.  Although a motion to dismiss was made at the close of the People's case, the defendant went on to present his own evidence but did not renew his original motion.

There are also new decisions from the First Department.  (LC)

AD3 reduces sentence in the interest of justice

In People v. Tesar (3d Dept. 8/6/2009), the defendant pleaded guilty to Grand Larceny 2º and Tampering with Public Records 1º.  She was formerly the clerk/treasurer of the Village of Port Henry.  She stole over $150,000 from the Village coffers.  After charges were filed, she pleaded guilty and waived her right to appeal.  No sentencing promise was made to her.  The defendant was sentenced to consecutive terms of 5-to-15 and 2-to-7 years.

The Appellate Division found that the trial court failed to advise the defendant of the maximum sentence she faced.  Accordingly, the court found the appellate waiver to be invalid.  Interestingly, the court also used this fact as part of its rationale to lower the defendant's sentence in the interest of justice:

Circumstances that merit consideration with regard to defendant's claim that her sentence is harsh and excessive are that defendant has no prior criminal record and she paid full restitution by the time of sentencing. In view of these factors and the failure to formally advise defendant of all relevant considerations at the time of the plea, we exercise our interest of justice jurisdiction and modify the sentence by directing that the terms of imprisonment for each crime run concurrently.

(emphasis added) (LC)

Update to restitution cases out of AD4

As I have blogged about before, a trial judge in the Fourth Department had been using his law secretary to conduct restitution hearings.  In a series of decisions, the Fourth Department held that this was improper.  The court reached the issue even though no objection was made below.  The court's decisions were based on its interest-of-justice jurisdiction.  Today, the Fourth Department sua sponte amended its decisions to indicate that its reversals were on the law.  Regarding preservation, the court held that no objection was necessary because the error affected the mode of proceedings.  The amended decisions are here and here.  As a practical matter, the change means that the Court of Appeals can review the case, if leave to appeal is granted.  (LC)

Procedures at the AD1

Justice David Saxe has an interesting article in today's Law Journal about how the Appellate Division, First Department, operates.  For those who practice before the First Department, the article is a gem of a read.  It is a rare glimpse into the internal procedures of the court. 

Justice Saxe discusses:

• how justices prepare for argument;
• the bench memoranda prepared by court attorneys;
• procedures during oral argument;
• how opinions are assigned and decisions are reached;
• motions; and
• disciplinary matters.

The article is free with registration.  (LC)

Has the bar for ineffective assistance of appellate counsel been set too high?

In People v. Borrell (Ct. App. 5/5/2009) (Lippman, C.J.), the Court of Appeals held that the defendant was not deprived of the effective assistance of appellate counsel.  The court's decision made a number of important statements about the writ of error coram nobis, the procedural vehicle for raising such a claim. 

The defendant in Borrell was convicted and sentenced under two judgments.  Sentences on two counts of one of the indictments were ordered to run consecutively.  The Appellate Division faulted appellate counsel for not arguing that the defendant's sentences should have been concurrent.  It granted the writ and modified the sentences accordingly.  The Court of Appeals reversed.

The majority's opinion makes a number of important points about effective assistance of appellate counsel, generally:

• The Baldi "meaningful representation" standard, used to evalute trial counsel's performance, applies with equal force to coram nobis applications.
• The appropriate question is not whether a better result could have been achieved on appeal but, instead, whether the appellate attorney's actions (briefing, oral argument) were "consistent with those of a reasonably competent appellate attorney."  Thus, the focus is not on a particular error but, rather, the totality of the attorney's performance.
• Effective appellate attorneys often make the tactical choice to focus on stronger arguments and forego weaker ones, even if some of the latter may have some merit.
• It is not enough for a defendant to show that there were potentially meritorious issues that could have been briefed.
• The failure to brief an issue will result in a new appeal only if a defendant can demonstrate that the error was "egregious and prejudicial" such that the defendant was deprived of a constitutional.  Quite a high standard.
• The burden is on the defendant to show the absence of a tactical explanation for the decision not to brief a particular issue.

Here, the court concluded that the single purported error --- the failure to brief the question of consecutive versus concurrent sentencing --- was far from clear-cut.  Indeed, the issue had been raised on a prior coram nobis application as well as a CPL § 440.20 motion, from which no appeal was apparently taken.  Moreover, the court found that the defendant's appellate attorney may have had a tactical reason for not addressing the sentencing issue.  He focused on six other issues.  In fact, his efforts were partially successful: Convictions for seven counts were reversed on suppression grounds.

The court concluded with a pretty striking comment about just how high the standard for ineffective assistance of appellate counsel is:

While it may ultimately be determined that defendant should have been sentenced concurrently, as he now contends, and that the representation at issue would have been more efficacious had the issue been raised on the appeal, the relevant and, indeed, dispositive threshold issue on this coram nobis application is not whether defendant's representation could have been better but whether it was, on the whole, constitutionally adequate. This less exacting standard was met by counsel on the appeal.

In dissent, Judge Pigott took a different approach, focusing on the potential effect of counsel's possible error.  If the sentencing claim had merit, the defendant's length of incarceration would have been reduced.  The dissent also took issue with the majority's characterization of the attorney's brief as meaningful.  Judge Pigott pointed out that it was "only" 37 pages long, leaving ample room to raise the sentencing issue.  In addition, counsel chose not to deliver oral argument, deciding instead to submit on the papers.  The dissent also noted that counsel's victory of winning dismissal of some of the counts only pertained to one of the consolidated judgments.  Nevertheless, Judge Pigott noted that the Appellate Division erred when it modified the sentence rather than ordering a new appeal on the issue.  (LC)

AD4 to hear reargument in court attorney restitution case

In February, I blogged about a curious case from the Fourth Department, People v. Bunnell.  In that case, the Fourth Department held that the sentencing court committed reversible error by having its court attorney hold a restitution hearing, even though the court later "affirmed" the law secretary's "ruling." 

Last week, the Fourth Department issued the following order:

Motion for reargument granted to the extent that the appeal should be added to the calendar for the May 2009 Term of Court for counsel to address the question whether County Court erred in delegating its responsibility to conduct the restitution hearing to its court attorney.

(LC). 

Rare Reversal for Lack of Identification Evidence

This week, the Second Department reversed a conviction for Robbery in the Second Degree and Assault in the Third Degree, using its weight-of-the-evidence review power to conclude that there was a lack of evidence to identify the defendant as the perpetrator of the crime.  The court held:

Only one of the six eyewitnesses proffered by the People affirmatively made an in-court identification of the defendant as the assailant, and that witness qualified his identification by stating: "I am not 100% positive . . . but I am pretty sure." Moreover, the out-of-court photographic identifications did not prove the defendant's identity as the assailant beyond a reasonable doubt. Two witnesses were asked by the police to make an identification using a photographic array containing six photos: one witness did not recognize the assailant in any of the photos and the other witness selected two photos of people who "kind of" looked like the assailant. Although one of the two photos was an image of the defendant, the witness told the police that the assailant "might be" the person in the other photo that was not the defendant. Two other witnesses were asked by the police to identify the assailant using a Middletown High School yearbook: one witness identified the defendant as the assailant and the other witness (who was the only witness to later identify the defendant in court) did not recognize anyone. Detective Thomas Miller testified that the investigation focused on the defendant because the vehicle from which the assailant exited was traced to the defendant's address. The defendant admitted at trial that he was present in the vehicle while the crimes took place, but contended that his cousin, who is similar in appearance, was the assailant. A photograph of the defendant's cousin was introduced into evidence. A second defense witness, whose physical description matched witness descriptions of a person at the scene of the crime, corroborated the defendant's testimony. Under these circumstances, we conclude that the verdict of guilt was against the weight of the credible evidence.

(LC)

Rare Coram Nobis Granted

Today, the Fourth Department granted a writ of error coram nobis.  Coram nobis is the procedural vehicle for a defendant to assert a claim of ineffective assistance of appellate counsel.  If the writ is granted, the court hears the defendant's appeal de novo.  They are rarely granted because of the high standard that must be satisfied in order to obtain a new appeal. 

Nevertheless, in a short memorandum decision, the Fourth Department today granted the defendant a new appeal in People v. Griffin (4th Dept. 2/6/2009):

Motion for writ of error coram nobis granted. ... Defendant contends that he was denied effective assistance of appellate counsel because counsel failed to raise an issue on direct appeal that would have resulted in reversal, specifically, whether defendant received an illegal sentence because of noncompliance with the statutory mandates of CPL 400.21. Upon our review of the trial court proceedings, we conclude that the issue may have merit. Therefore, the order of December 22, 2005 is vacated and this Court will consider the appeal de novo (see People v LeFrois, 151 AD2d 1046 [1989]). Defendant is directed to file and serve his records and briefs with this Court on or before June 5, 2009.

(LC).

Rare finding of ineffective assistance of counsel

People v. Fleming (1st Dept. 1/20/2009) is a rare case in which the First Department found, after examining the totality of the record, that the defendant received ineffective assistance of counsel:

Counsel's [sic] demonstrated her lack of basic comprehension of criminal law and procedure through her persistent frivolous conduct at multiple stages of the proceeding, including, among other things, pretrial motion practice, a purported interlocutory appeal, the suppression hearing, requests for jury instructions, posttrial motions and sentencing. Counsel's woeful lack of knowledge approached the traditional "farce and a mockery of justice" standard (see People v Tomaselli, 7 NY2d 350, 353-354 [1960]). This case presented an issue of whether defendant was aware of the illicit contents of a package he accepted in a controlled postal delivery. Counsel completely and prejudicially misunderstood and mishandled this issue, and defendant was deprived of a fair trial as a result. We find counsel's unfamiliarity with the sentencing parameters for defendant's crime particularly troubling in view of the fact that before trial defendant received a beneficial plea offer of three to nine years.

Ordinarily, IAC claims can only be addressed through a 440 motion because a thorough analysis of the claim requires consideration of matters outside of the record, particularly counsel's reasons for pursuing particular strategies.  These cases, in turn, get to the Appellate Division through one of two vehicles: a permissive appeal (from the denial of a 440 motion) or a direct appeal (when a 440 motion is granted).  Here, the four corners of the record contained enough evidence of ineffectiveness and so the defendant's appellate counsel was able to raise the claim on direct appeal.  In other words, implicit in the First Department's ruling was that there was no legitimate strategy that could explain counsel's decisions.

An important note about IAC claims, in general.  To succeed in winning a new trial, a defendant must ordinarily do more than show a single error by his trial attorney.  Counsel's effectiveness must be examined in the context of the totality of his or her performance.  A court will examine the motions he filed, his examination of witnesses, objections raised, and arguments in summation.  Fleming demonstrates that, in the usual case, an IAC claim will be sustained only if counsel showed a pattern of prejudicial errors.  (Of course, there are exceptions to this rule.  A single error could result in a new trial if it was sufficiently egregious.)  (LC)

Depraved Indifference Developments

People v. Jean-Baptiste (Ct. App. 11/25/2008) was decided yesterday by the Court of Appeals.  Writing for a unanimous court, Judge Pigott held that the evidence at trial was not legally sufficient to establish the defendant's guilt for depraved indifference murder.  The opinion summarized the facts:

On January 13, 2002, just after midnight, Michael Weekes, his fiancÉe and several other friends arrived at a party in a basement of a Brooklyn home. After approximately 20 minutes, Weekes and his fiancee walked past a man nicknamed "Backshot," whom they recognized from previous parties. Backshot either said something to Weekes, pushed him, or both. In response, Weekes turned, picked up a bottle from a table and hit Backshot once on the side of the head. Defendant, Backshot's cousin, then pulled out a handgun and, when he was within 12 to 18 inches of Weekes, pulled the trigger twice, but the gun did not fire. Defendant pulled the trigger a third time, discharging a round into Weekes's chest, killing him.

In a post-Feingold world, it is difficult to imagine how a set of facts could ever constitute depraved indifference murder.  It is pretty clear that the defendant acted with intent.  How, then, did the jury get charged with depraved indifference murder?  Were the prosecutor and trial judge both asleep?

Of course not.  At the time of the trial, Feingold had yet to be decided.  Register was the controlling law.  The twin-count submission of both intentional and depraved indifference murder was consistent with decades of jurisprudence.

While Jean-Baptiste was up on appeal, Feingold was decided.  The question for the court was whether to apply the new rule about depraved indifference murder retroactively.  (A separate issue -- the retroactivity of Feingold to cases on collateral review -- was decided by the court in Policano v. Herbert.)  The court squarely held that since Jean-Baptiste was still on direct review, Feingold applied:

"Under traditional common-law principles, cases on direct appeal are generally decided in accordance with the law as it exists at the time the appellate decision is made" (People v Vasquez, 88 NY2d 561, 573 [1996]). For instance, in People v Hill, (85 NY2d 256 [1995]), we held that our decision in People v Ryan (82 NY2d 497) — concluding the term "knowingly" in Penal Law § 220.18 applies not only to the possession of the illicit substance itself but also to the weight of the substance — was applicable to cases pending on direct appeal at the time of the decision. We reasoned that "a conclusion that the Ryan case is not retroactive would result in a person's guilt even though one of the elements of the crime had not been established" (id. at 263). As such, a finding of guilt would "have rendered the proceeding fundamentally unfair and a violation of due process" (id. at 262).

(emphasis added).  I am concerned that attorneys, judges, and others reading this decision may get the sense that there is an automatic rule of retroactivity for cases on direct appeal.  Such is not the law.  Carefully note the court's use of the term "generally."  New York, unlike federal law, does not have a hard-and-fast rule that a new decision automatically applies to all cases in the direct review pipeline.  Instead, a court is to apply a three-factor test in each instance.  See People v. Favor, 82 N.Y.2d 254, 260-62 (1993).  In Favor, the court wrote, "[A] new rule of State law need not automatically be applied to all cases currently in the direct appeal pipeline."  Indeed, the court in Jean-Baptiste went on to apply the three-factor test.

In any event, the court also rejected the People's backup argument that "even if this Court retroactively applied Feingold to cases on direct appeal, the legal sufficiency of defendant's conviction should be measured by the court's charge given without exception."  The court distinguished two cases, People v. Dekle and People v. Sala:

Here, however, the defendant made a specific motion to dismiss for legal insufficiency at trial, anticipating the change in the law brought by Feingold. The principle the People cite is inapplicable when, as in this case, defense counsel made a specific motion for a trial order of dismissal. Having made that motion, defense counsel did not additionally have to take an exception to the court's depraved indifference murder charge (see Suria v Shiffman, 67 NY2d 87, 96 [1986]).

Our holdings in People v Dekle (56 NY2d 835 [1982]) and People v Sala (95 NY2d 254, 260 [2000]) are not to the contrary. In Dekle, defendant moved for a trial order of dismissal on a robbery count because no "immediate" threat of physical force was possible when defendant was unable to open the folded knife. The court denied his motion and charged the jury that "immediate" had its ordinary meaning and no specific time was required to convict; defendant did not object to that definition. On appeal, defendant advanced a new theory, claiming that the trial court should have charged that "immediate" requires temporal and geographic proximity to the taking of the property. Unlike the present case, defendant in Dekle failed to preserve his newly advanced legal theory because it differed from the theory he advanced at trial. In Sala as well, the defendants advanced a different legal theory in this Court than the one objected to at trial.

(LC)

Preservation

Chief Judge Kaye, in what will be one of her last opinions as a Judge of the Court of Appeals, wrote for a unanimous court in People v. Hawkins (Ct. App. 11/25/2008), a consolidated case dealing with preservation.  It is an important case for both trial and appellate attorneys.

The Court of Appeals is limited to hearing questions of law.  In contrast, the Appellate Division can decide questions of law, fact, or issues in the interest of justice.  Legal sufficiency is a question of law ... but only if it has been properly preserved.  What constitutes adequate preservation?

To preserve for this Court's review a challenge to the legal sufficiency of a conviction, a defendant must move for a trial order of dismissal, and the argument must be "specifically directed" at the error being urged (People v Gray, 86 NY2d 10, 19 [1995]; People v Hines, 97 NY2d 56, 62 [2001]). As we have repeatedly made clear — and underscore again — general motions simply do not create questions of law for this Court's review (see People v Finger, 95 NY2d 894, 894 [2000] [legal sufficiency issue was unpreserved by a motion for trial order of dismissal claiming that every element had not been proven]; People v Bynum, 70 NY2d 858, 859 [1987]; People v Stahl, 53 NY2d 1048 [1981]; People v Cona, 49 NY2d 26, 33 n 2 [1979]).

Unfortunately, many motions for trial order of dismissal are general and perfunctory.  The Court explained why specificity is required:

Sound reasons underlie this preservation requirement. As we stated in Gray, a specific motion brings the claim to the trial court's attention, alerting all parties in a timely fashion to any alleged deficiency in the evidence, thereby advancing both the truth-seeking purpose of the trial and the goal of swift and final determination of guilt or nonguilt of a defendant (86 NY2d at 19-20). A defendant's motion for a trial order of dismissal that specifies the alleged infirmity helps to assure that legally insufficient charges will not be submitted for the jury's consideration, and serves the overall interest in an efficient, effective justice system.

Viewing the preservation requirement in the context of the individual trial, it is defense counsel who is charged with the single-minded, zealous representation of the client and thus, of all the trial participants, it is defense counsel who best knows the argument to be advanced on the client's behalf. Viewing the preservation requirement systemically, intermediate appellate court review is potentially comprehensive, including not only law questions but also fact issues and the interest of justice. This Court's second level of review — "to authoritatively declare and settle the law uniformly throughout the state" — is best accomplished when the Court determines legal issues of statewide significance that have first been considered by both the trial and the intermediate appellate court.

Given this strong reaffirmance of the principles in Gray, it is incumbent upon trial defense counsel to make a strong record of legal insufficiency.  Otherwise, appellate counsel will have to fallback on an "interest of justice" attack before the Appellate Division.  These claims are difficult to win. 

Lessons learned?

• Counsel should prepare for the motion for trial order of dismissal as they would for any other important stage of a trial: voir dire, cross-examination of  witnesses for the People, summations, etc.  It is tough to come up with specific legal sufficiency arguments in the middle of trial.
• A motion for trial order of dismissal should carefully and slowly lay out the arguments why each particular count of the indictment should be dismissed.  While citation to case law is not necessary, it is always helpful.
• A catch-all or general motion ("I move to dismiss Count X of the Indictment because the People have failed to adduce legally sufficient evidence. Thank you, Your Honor.") is as good as making no motion at all.  Specificity is the key. 
• Judges should allow defense counsel sufficient time to prepare and make their arguments.  If the People rest their case at 12:55 p.m., perhaps hearing the motion after a lunch recess would be preferable to "getting it out of the way" before the break.
• Remember that if the defense presents evidence, the motion must be renewed at the close of the evidence.  See People v. Hines, 97 N.Y.2d 56 (2001). Here, too, the argument must be specific.

(LC)

Direct appeal cannot be used as a backdoor to appealing a 440 denial where leave to appeal was previously denied

There are two tracks to the criminal appeal process: direct and collateral.  Claims on direct review must derive from the record.  Collateral attacks -- usually through CPL Article 440 -- usually concern matters outside the printed record, such as ineffective assistance of counsel, witness recantation, or newly discovered evidence.  Sometimes appellate counsel will see issues that fit into both categories and will litigate both avenues simultaneously or have one stayed while focusing on the other. 

In People v. Martinaj (1st Dept. 11/20/2008), the defendant pursued a 440 motion claiming, among other things, a Brady violation.  The motion was denied and, pursuant to CPL § 460.15, the defendant sought leave to appeal.  (Appeal is not as of right from the denial of a 440 motion.)  A justice of the First Department denied that application. 

The defendant then proceeded with his direct appeal.  The People moved to strike his brief because it contained "the same grounds advanced in support of defendant's unsuccessful CPL 440.10 motion."  Appellate counsel submitted an affidavit asserting that the claims were, in fact, derived from the trial record, not the record before the motion court.  The court denied the motion to strike without prejudice to raising the issue on appeal.  Once the appeal was before the court, however, it found that, in fact, the defendant was raising the same issues he "unsuccessfully made in support of the CPL 440.10 motion."  The appendix to the defendant's brief consisted of the 440 motion record, not the trial record.  The court went on, "On this score, we note our displeasure with the patent falsity of counsel's affirmation as set forth above."  The court ultimately found that the trial record did not support the defendant's appellate claims in any event.  (LC)