N.Y. Comp. Codes R. & Regs. tit. 22 § 515.2

Current through Register Vol. 46, No. 50, December 11, 2024

Section 515.2 - Standards for State post-conviction counsel in capital cases

(1) State post-conviction qualifications and experience.

(a) State post-conviction counsel. To be eligible to be appointed as lead counsel on an initial motion pursuant to section 440.10 or 440.20 of the Criminal Procedure Law and any appeal therefrom in a capital case, an attorney must demonstrate that he or she:

(1) has at least six years criminal trial, criminal appellate or State or Federal post-conviction experience, or has at least four years of concentrated criminal or civil litigation experience;

(2) is familiar with:

(i) the practice and procedure of the trial and appellate courts of New York, including the New York Court of Appeals; and

(ii) the practice and procedure of the Federal courts with regard to Federal habeas corpus petitions;

(3) has conducted 12 trials before judges, arbitration panels or juries to verdict, decision, or hung jury, in serious and complex civil or criminal cases;

(4) 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;

(5) has substantial familiarity with, and extensive experience in the use of, expert witnesses and scientific and medical evidence including, but not limited to, mental health and pathology evidence; and

(6) meets two of the following criteria:

(i) has tried five homicides to verdict or hung jury with at least three as defense counsel;

(ii) has, at the trial level, represented to disposition defendants in eight homicide cases;

(iii) has represented capital defendants in three State or Federal post-conviction proceedings;

(iv) has brought five motions, pursuant to section 440.10 or 440.20 of the Criminal Procedure Law, where hearings were held and witnesses examined.

(b) 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 upon demonstration by the attorney that he or she, by reason of extensive criminal or civil litigation, 440 motion practice, appellate and/or post-conviction experience or other exceptional qualifications, is capable of providing effective representation as post-conviction 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 requirement that he or she requests be waived, and shall set forth in detail his or her criminal or civil litigation, 440 motion practice, appellate and/or post-conviction experience or other exceptional qualification that justify waiver.

(b) Required submissions. In support of an application, an attorney shall submit to the Capital Defender Office:

(1) a description of a trial or post-conviction strategy in a case handled by the attorney and reflective of the attorney's thorough advocacy. This strategy may have, for instance, aimed to achieve a favorable pre-trial disposition or to alter the range of sentencing options;

(2) at least two memoranda of law prepared by the attorney in connection with separate cases;

(3) at least two appellate briefs written exclusively or primarily by the applicant, the opposing briefs, and the decisions;

(4) the names, addresses and phone numbers of two prosectors and two defense attorneys, current or former, including at least one adversary, familiar with the applicant's work as an effective advocate;

(5) the applicant may submit the name, address, and phone number of one judge, if the judge is familiar with the applicant's work as an effective advocate;

(6) a description of specialized trial, appellate or post-conviction capital defense training programs regularly attended; and

(7) any other material that may be relevant to fully evaluate the applicant's 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 post-conviction 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 post-conviction 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 post-conviction counsel in a capital case, and after consideration of the recommendations 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 post-conviction 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 post-conviction counsel in a capital case.

(4) Additions to Court of Appeals roster.

(a) Requests for reconsideration. Any attorney whose application for designation as qualified post-conviction 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 post-conviction counsel if the court deems the attorney qualified to serve as post-conviction counsel in a capital case.

(5) Training.

(a) Certification. An attorney shall not be eligible to be appointed as post-conviction counsel in a capital case unless the Capital Defender Office shall certify that the attorney satisfactorily has completed a capital post-conviction 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, may 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 an initial motion pursuant to section 440.10 or 440.20 of the Criminal Procedure Law and an appeal therefrom, 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.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 515.2