Summary
holding that the federal constitution does not mandate assignment of counsel in a C.P.L. § 440 motion since it is a post-conviction collateral proceeding
Summary of this case from Pratt v. Upstate Correctional FacilityOpinion
September 20, 1993
Carolyn Richardson, defendant pro se. Charles Hynes, District Attorney of Kings County (Amy Applebaum of counsel), for plaintiff.
Defendant moves to vacate the conviction on various grounds. Defendant also requests the court appoint counsel on this motion because she lacks funds and is unable to obtain an attorney who will volunteer to assist her. Before addressing the merits, the court addresses assignment of counsel.
The Sixth Amendment to the United States Constitution as applied to the States through the Fourteenth Amendment mandates that States provide indigent defendants with counsel at trial (Gideon v Wainwright, 372 U.S. 335). The Federal Constitution also mandates that States appoint counsel to poor persons for the first appeal as of right (Douglas v California, 372 U.S. 353). However, the Federal Constitution does not require States to appoint an attorney to an indigent individual in discretionary appeals or after the initial appeal (Ross v Moffitt, 417 U.S. 600). The Federal Constitution also does not mandate that States appoint counsel to indigent defendants in collateral proceedings (Pennsylvania v Finley, 481 U.S. 551).
Since CPL 440.10 is a collateral proceeding the Federal Constitution does not mandate that the court assign counsel to defendant (Pennsylvania v Finley, supra).
While the Federal Constitution does not mandate appointment of counsel to indigents, States are free to interpret their own constitutional provisions differently (see, People v Settles, 46 N.Y.2d 154).
Most States that have addressed the State Constitution issue have held that there exists no State constitutional right to counsel in a postconviction motion to vacate a judgment (Mayes v State, 563 So.2d 38, 39 [Ala]; Hertz v State, 755 P.2d 406, 407-408 [Alaska]; Howard v Lockhart, 300 Ark. 144, 777 S.W.2d 223; Lozada v Warden, 24 Conn. App. 723, 591 A.2d 1272, 1273-1274, affd 223 Conn. 834, 613 A.2d 818; People v Demarest, 801 P.2d 6, 7 [Colo]; State v Dickens, 602 A.2d 95, 98, affd 577 A.2d 752 [Del]; Doe v United States, 583 A.2d 670, 672 [DC]; Rodriguez v State, 122 Idaho 20, 830 P.2d 531, 533; People v Flores, 153 Ill.2d 264, 274, 606 N.E.2d 1078, 1084; Baum v State, 533 N.E.2d 1200, 1201 [Ind]; Fuhrmann v State, 433 N.W.2d 720, 722 [Iowa]; Commonwealth v Stamps, 672 S.W.2d 336, 339 [Ky]; Neal v State, 422 So.2d 747, 748 [Miss]; Rice v State, 779 S.W.2d 771, 774 [Mo]; Petition of Martin, 240 Mont. 419, 420, 787 P.2d 746, 747; State v Stewart, 242 Neb. 712, 496 N.W.2d 524, 529; State v Crowder, 60 Ohio St.3d 151, 152, 573 N.E.2d 652, 653-654; Commonwealth v Perry, 386 Pa. Super. 534, 540, 563 A.2d 511, 514; State v Garrard, 693 S.W.2d 921 [Tenn]; In re Chapman, 155 Vt. 163, 581 A.2d 1041, 1043). While not constitutionally mandated, a majority of these States have statutory authority or rules regarding appointment of counsel in postconviction motions instituted by indigent persons (see, cases above). Florida (Brevard County Bd. of County Commrs. v Moxley, 526 So.2d 1023, 1026) and California (People v Shipman, 62 Cal.2d 226, 232, 42 Cal.Rptr. 1, 5, 397 P.2d 993, 997; contra, People v Fowler, 175 Cal.App.2d 808, 346 P.2d 792, 794 , cert denied 363 U.S. 849) appear (although it is somewhat unclear) to require under their State Constitutions the appointment of counsel to poor individuals on postconviction motions where the moving papers indicate that the motion is not "frivolous".
New York does not appear to have addressed the State Constitution issue of the right of an indigent to counsel on a motion to vacate a judgment. In determining whether or not a State constitutional right differs from the Federal Constitution, courts examine "interpretive" and "noninterpretive" factors (see, People v P. J Video, 68 N.Y.2d 296, 302-303, cert denied 497 U.S. 1091). Interpretive factors focus on "differences in the text, structure, or historical underpinning" of the State and Federal Constitutions (People v Alvarez, 70 N.Y.2d 375, 378). Noninterpretive factors include, but are not limited to, a perception of a sound policy and fairness, historical protections in New York, and whether the right is of local concern (supra, at 378-379). Balanced against these concerns are "practical considerations", the need for uniformity and "bright line[s]" (supra, at 379).
A textual analysis of article I, § 6 of the New York Constitution indicates that "[i]n any trial in any court" (emphasis added) defendant has a right to "appear and defend" with counsel. The meaning of the word "'trial'" in the State Constitution must be determined in light of the particular purpose of the particular right (People v Anderson, 16 N.Y.2d 282, 288). For example, for the purpose of the New York State constitutional right to be present, the word trial includes suppression hearings (supra). In contrast, the New York State constitutional right to compulsory process at "trial" does not include suppression hearings (People v Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833).
Nonetheless, it appears that the trial "terminates" with a jury verdict (CPL 1.20), and a judgment is entered upon sentencing (CPL 1.20). It appears from a textual analysis that the New York State Constitution would not include postjudgment motions as part of the "trial".
Historically, New York's right to counsel has developed independent of the Federal Constitution (see, People v Hobson, 39 N.Y.2d 479). The right to counsel in New York antedates the Federal right (People v Witenski, 15 N.Y.2d 392, 396-397), and is much broader than the Federal equivalent (see, People v Settles, 64 N.Y.2d 154, supra; People v Samuels, 49 N.Y.2d 218; People v Rogers, 48 N.Y.2d 167).
Nonetheless, historically, the New York right to counsel has consistently not been extended to postconviction matters (see, e.g., People v Robles, 72 N.Y.2d 689; Matter of Jose D., 66 N.Y.2d 638; People v Colwell, 65 N.Y.2d 883; People v Lucarano, 61 N.Y.2d 138; People v Stoliker, 94 A.D.2d 854; cf., People v West, 81 N.Y.2d 370). The postconviction matters where a right to counsel exists, such as appeals as of right, have their genesis in the Federal Constitution not the State Constitution (Douglas v California, 372 U.S. 353, supra; see, People v Hughes, 15 N.Y.2d 172; People v Wilson, 7 N.Y.2d 568, both apparently overruled because of CPL 450.15).
There appears to be no historical basis for the appointment of counsel under the New York State Constitution in a postjudgment motion to vacate.
It appears necessary to balance the imposition of an additional financial burden on the State of providing free counsel against a movant's statutorily authorized CPL article 440 motion, where appeals are provided for and there exists a presumption of regularity.
The court finds that the New York State Constitution does not mandate appointment of counsel on a postconviction motion.
While the Constitution does not require appointment of counsel for "poor persons", the court must analyze New York statutes.
CPL 210.15 (2) (c) as is relevant states:
"2. The defendant has a right to the aid of counsel at the arraignment and at every subsequent stage of the action, and, if he appears upon such arraignment without counsel, has the following rights: * * *
"(c) To have counsel assigned by the court in any case where he is financially unable to obtain the same" (emphasis supplied).
Thus, at every "stage of the action" a "financially unable" individual has a statutory right to counsel.
CPL 1.20 (16) reads as follows: "16. 'Criminal action.' A criminal action (a) commences with the filing of an accusatory instrument against a defendant in a criminal court, as specified in subdivision seventeen; (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument, or which, regardless of the court in which they occurred or were made, could properly be considered as a part of the record of the case by an appellate court upon an appeal from a judgment of conviction; and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case" (emphasis supplied).
After sentence the criminal action terminates, and what follows is not a "stage of the action" (Matter of DeBellis v Property Clerk of City of N.Y., 79 N.Y.2d 49, 56; Matter of Darvin M. v Jacobs, 69 N.Y.2d 957, 959).
CPL 210.15 (2) (c) does not apply to CPL article 440 motions.
County Law § 722 (4) as is relevant reads as follows: "4. Representation according to a plan containing a combination of any of the foregoing. Any judge, justice or magistrate in assigning counsel * * * to a defendant when a hearing has been ordered in a proceeding upon a motion, pursuant to article four hundred forty of the criminal procedure law, to vacate a judgment or to set aside a sentence * * * shall assign counsel furnished in accordance with a plan conforming to the requirements of this section; provided, however, that when the county or the city in which a county is wholly contained has not placed in operation a plan conforming to that prescribed in subdivision three or four of this section and the judge, justice or magistrate is satisfied that a conflict of interest prevents the assignment of counsel pursuant to the plan in operation, or when the county or the city in which a county is wholly contained has not placed in operation any plan conforming to that prescribed in this section, the judge, justice or magistrate may assign any attorney in such county or city and, in such event, such attorney shall receive compensation and reimbursement from such county or city" (emphasis added; see also, Judiciary Law § 35).
Under this section a court is authorized to assign an "18-B" attorney when a "hearing" on CPL article 440 is ordered (see, People v James, NYLJ, June 19, 1992, at 22, col 6).
County Law § 722 (also Judiciary Law § 35) was enacted to enable the court to more efficiently exercise its inherent power to assign counsel to indigents, and not as a limitation on that authority (Matter of Stream v Beisheim, 34 A.D.2d 329, 334).
Courts in New York have had the inherent power to assign counsel to indigent defendants since colonial times (People v Price, 262 N.Y. 410, 412, quoting People ex rel. Acritelli v Grout, 87 App. Div. 193, affd on prevailing opn below 177 N.Y. 587). The inherent power of the court to assign counsel to indigent persons includes the power to assign counsel with or without compensation (supra; People ex rel. Williams v La Vallee, 19 N.Y.2d 238; People v Monahan, 17 N.Y.2d 310, 313; People v Witenski, 15 N.Y.2d 392, 397-398, supra; People v Wheat, 80 Misc.2d 844). In a "proper" coram nobis petition, a court is mandated, upon request, to exercise its inherent power and assign counsel to financially unable persons (People ex rel. Williams v La Vallee, 19 N.Y.2d, at 240, supra; People v Monahan, 17 N.Y.2d 310, supra). A "proper" case is "where a criminal defendant in his [her] papers suggests a possible basis on the merits, although for lack of counsel's advice, the presentation is vulnerable" (People ex rel. Williams v La Vallee, 19 N.Y.2d, at 240-241, supra [matters in bracket added]). It is also a "proper" case for appointment of counsel to indigent persons, upon request, where a court orders a hearing on a coram nobis petition (People v Monahan, 17 N.Y.2d 310, supra; People v McElroy, 34 A.D.2d 850; People ex rel. Rodriguez v La Vallee, 26 A.D.2d 8; People v St. John, 281 App. Div. 1061). It is not a "proper" coram nobis mandating assignment of counsel to indigents, upon request, where the petitioner has made multiple applications (People ex rel. Sanchez v Hoke, 132 A.D.2d 861, 862; People v Boundy, 34 A.D.2d 829, 830); or where the record conclusively refutes the factual allegations of defendant (People v Boundy, supra; People v Hill, 30 A.D.2d 976); or where the motion repeats prior adjudicated claims (People ex rel. Baumgart v Martin, 9 N.Y.2d 351, 354, cert denied 368 U.S. 962; People ex rel. Visconti v McMann, 28 A.D.2d 1012, 1013; People v Scott, 36 A.D.2d 686); or where the claim is precluded by "well-established principles" (People ex rel. Sanchez v Hoke, 132 A.D.2d 861, 862, supra; see also, People ex rel. Washington v La Vallee, 34 A.D.2d 603); or where the allegations of fact are insufficient to warrant appointment of counsel (People ex rel. Diaz v Follette, 29 A.D.2d 771; see also, People v Brandau, 19 Misc.2d 879).
This court will exercise its inherent power to appoint counsel in a "proper" matter, as previously defined, and will not exercise its inherent power to appoint counsel in an improper case, as defined previously.
[Portions of opinion omitted for purposes of publication.]