2023 New York Laws › JUD - Judiciary › Article 2 - General Provisions Relating to Courts and Judges › 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
in  which a death sentence may be imposed.  1. Notwithstanding any other
provision of law to the contrary, in every criminal action  in  which  a
defendant  is  charged  with  murder  in  the first degree as defined in
section 125.27 of the penal law, or in any criminal action  in  which  a
defendant  is  charged  with  murder  in the second degree as defined in
section 125.25 of the penal law and the district attorney confirms  upon
inquiry  by  the  court  that  the  district  attorney is undertaking an
investigation to determine  whether  the  defendant  can  or  should  be
charged  with murder in the first degree as defined in section 125.27 of
the penal law and the  court  determines  that  there  is  a  reasonable
likelihood  the  defendant  will  be  so charged, if the defendant is or
becomes  financially  unable  to  obtain  adequate   representation   or
investigative, expert or other reasonably necessary services at any time
either  (a)  prior  to  judgment,  or  (b) after the entry of a judgment
imposing a sentence of death but before final  resolution  of  a  direct
appeal  pursuant  to  subdivision  one of section 450.70 of the criminal
procedure law and of an appeal pursuant to subdivision two or  three  of
section  450.70  of  the criminal procedure law from an order denying an
initial post judgment motion pursuant to section 440.10 or 440.20 of the
criminal  procedure  law,  the  defendant  shall  be  entitled  to   the
appointment   of  counsel  and  investigative,  expert  and  such  other
reasonably necessary services in accordance with the provisions of  this
section.   Prior to the appointment of counsel pursuant to this section,
the court shall  determine  whether  the  defendant  is  or  has  become
financially unable to obtain adequate representation.  In the event such
defendant  seeks  to  file any subsequent motion, he or she shall not be
eligible for the appointment of counsel pursuant to this section.
2. The appointment of counsel shall be made by the trial court if made
prior to the entry of a judgment including a sentence of death or by the
court of appeals, except as otherwise provided in this  subdivision,  if
made  after  the entry of a judgment including a sentence of death. With
respect to counsel at trial and at a separate sentencing proceeding, the
court shall appoint two attorneys, one to be designated  "lead"  counsel
and  the other to be designated "associate" counsel.  The appointment of
any such counsel shall be made from a list of  four  proposed  teams  of
qualified  lead  and associate counsel provided to the appropriate court
by the capital defender office.  Alternatively, the court may, with  the
consent  of the capital defender office, appoint the office to represent
the defendant.  At least one of the proposed teams of qualified lead and
associate counsel on any list submitted  pursuant  to  this  subdivision
shall  regularly  practice  within  the judicial department in which the
defendant has been charged. With respect to a jurisdiction in which  the
capital  defender  office  has  entered  into  an  agreement  to provide
representation with a legal aid society, office of  public  defender  or
other  not-for-profit  organization providing criminal defense services,
the capital defender office may designate the society,  public  defender
or  organization for appointment as counsel pursuant to this section and
need not submit a list of four proposed  teams  of  qualified  lead  and
associate  counsel  for  appointment.  In  the event that counsel is not
appointed pursuant to the foregoing provisions of this subdivision,  the
court   may  appoint  any  attorney  whose  name  appears  on  a  roster
established pursuant to subdivision five of this section for appointment
as lead  or  associate  counsel.  In  the  event  no  such  attorney  is
available,  the  court  may appoint an attorney eligible for appointment
pursuant to article eighteen-B of the county law  who  is  competent  to
represent  defendants  charged  with  murder and other serious felonies.
With respect to an appeal from a judgment including a sentence of death,

the court of appeals shall assign lead counsel only, but for good  cause
shown,  the  court  may  assign  associate  counsel.  With respect to an
initial motion pursuant to section 440.10  or  440.20  of  the  criminal
procedure  law,  and  any  appeal therefrom, the appropriate court shall
assign lead counsel only.  The  trial  court  shall  assign  counsel  in
connection  with  such  a  motion  and the court of appeals shall assign
counsel in connection with any appeal therefrom.
3. There is hereby created a capital defender office, to  be  governed
by  a three member board of directors.  No attorney who is employed as a
judge, prosecutor or in a law enforcement capacity shall be eligible  to
serve  on  such  board.    The  board  members shall be appointed in the
following manner:  one member shall be appointed by the chief  judge  of
the  court  of  appeals,  one member shall be appointed by the temporary
president of the senate and one member shall be appointed by the speaker
of the assembly. Each member shall be appointed to serve  a  three  year
term  and  vacancies  shall be filled in the same manner as the original
appointment.  Members of the board shall  receive  no  compensation  but
shall  be reimbursed all reasonable and necessary expenses incidental to
their duties.
4. Within the amounts appropriated therefor:
(a) The board of directors shall  have  the  authority  to  appoint  a
capital  defender, who shall have the authority in consultation with the
board of directors  to  hire  attorneys  as  deputy  capital  defenders,
investigators and such other staff as the capital defender and the board
of  directors  deem  necessary to effectuate the purposes of the capital
defender office.
(b) The capital defender office shall be authorized as follows:
(i) Upon  appointment  in  accordance  with  the  provisions  of  this
section,   to  act  as  counsel  for  defendants  and  to  furnish  such
investigative, expert and other reasonably  necessary  services  as  the
capital defender deems appropriate;
(ii)  To provide legal or other advice or, to the extent not otherwise
available, any other assistance to counsel appointed  pursuant  to  this
section;
(iii)  To  provide investigative, expert or other reasonably necessary
services to defendants charged with murder in the first degree  who  are
not  represented  by  the  capital  defender  office, provided that such
defendants (A) are or have become financially unable to obtain  adequate
investigative,  expert  or  other  reasonably necessary services and are
represented by counsel appointed pursuant to this section, and (B)  have
obtained  pursuant to this section the approval of a trial court for the
same investigative,  expert  or  other  reasonably  necessary  services,
provided,  however, that such defendants have not received such services
from other sources;
(iv) To determine, in consultation with the  administrative  board  of
the  judicial  conference,  proposed  minimum  standards  for  lead  and
associate  counsel  in  capital  cases.    In  determining  the  minimum
standards,   the  capital  defender  office  in  consultation  with  the
administrative board of the judicial  conference  shall  consider  among
other  factors  both  the  needs  of the state for an adequate number of
attorneys to represent defendants in capital  cases  and  the  needs  of
defendants   in   capital  cases  for  competent  counsel.  The  minimum
standards, and any modifications  thereto  which  the  capital  defender
office  in  consultation  with  the administrative board of the judicial
conference may from  time  to  time  propose,  shall  be  submitted  for
approval  to  the  court  of  appeals.    Prior to approving the minimum
standards and any modifications  thereto  the  court  shall  invite  the
submission of written comments from interested parties;
(v)  To  provide  continuing  legal  education,  training,  advice and
assistance to attorneys representing or seeking to represent  defendants
in capital cases; and
(vi)  To  enter  into an agreement with a legal aid society, office of
public defender or other not-for-profit organization providing  criminal
defense  services  to  designate  and  provide  counsel pursuant to this
section. Any agreement shall require that the society,  public  defender
or  organization  effectuate the purposes and provisions of this section
and may be terminated by the capital defender office by  serving  notice
on  the society, public defender or organization sixty days prior to the
effective date of termination. Upon the termination  of  any  agreement,
the   representation   provided  by  the  society,  public  defender  or
organization shall continue until the proceeding  is  concluded  or  the
court relieves the society, public defender or organization and appoints
successor counsel pursuant to this section.  The capital defender office
may  require  such reports as it deems necessary in connection with such
agreement and shall monitor compliance  with  its  terms.    A  society,
public  defender or organization which enters into an agreement pursuant
to this section shall not be the exclusive provider  of  counsel  within
such  society's,  public  defender's or organization's jurisdiction.  In
the event that a defendant is not represented by such a society,  public
defender  or  organization due to a conflict, counsel shall be appointed
in accordance with the provisions of subdivision two of this section.
5. (a) A  screening  panel  shall  be  established  in  each  judicial
department consisting of four members, two of whom shall be appointed by
the  board  of  directors of the capital defender office and two of whom
shall be appointed by the presiding justice of each judicial department.
Each screening panel shall establish and periodically update a roster of
attorneys qualified for appointment as lead counsel or associate counsel
pursuant to the provisions  of  this  section.    The  capital  defender
office,  in  consultation  with the administrative board of the judicial
conference, shall  promulgate  regulations  to  provide  that  qualified
attorneys  whose  names  appear  on  such  rosters  and  who  wish to be
appointed to represent defendants  in  capital  cases,  are  given  fair
opportunity  to  receive such appointments.   Each screening panel shall
also promulgate  and  periodically  update,  in  consultation  with  the
administrative  board  of the judicial conference, a schedule of fees to
be paid attorneys pursuant to this section  in  each  department,  which
schedule shall be subject to the approval of the court of appeals. Prior
to  approving  fee  schedules,  the court shall invite the submission of
written comments from  interested  parties.    Fee  schedules  shall  be
promulgated  and  approved  after  reviewing  the  rates of compensation
generally  paid  in  the  department  to  attorneys   with   substantial
experience  in  the  representation of defendants charged with murder or
other serious felonies, and shall be adequate to ensure  that  qualified
attorneys  are  available  to  represent  defendants eligible to receive
counsel pursuant to this section.
(b) Each appellate division, in consultation with the screening panel,
shall establish the rates of fees and expenses to be  paid  for  expert,
investigative  and  other reasonably necessary services pursuant to this
section.
6. (a) When a defendant has been charged in an  accusatory  instrument
with  murder  in  the  first  degree as defined in section 125.27 of the
penal law or with murder in the second  degree  as  defined  in  section
125.25  of the penal law, the district attorney shall notify the capital
defender office.
(b) The clerk of the superior court wherein a judgment that includes a
sentence of death has been entered and the clerk of the court of appeals

upon an order affirming a judgment that includes  a  sentence  of  death
shall  notify  the  capital  defender  office  of the judgment or order.
Notice need not be given when the defendant has retained counsel of  his
or  her  own  choosing  or when appellate or post-conviction counsel has
already been appointed pursuant to this section and when counsel advises
that he or she will continue to act on the defendant's behalf.
(c) Notice  to  the  capital  defender  office  required  pursuant  to
paragraph  (a)  or  (b)  of this subdivision shall consist of telephone,
facsimile, E-mail or  other  prompt  electronic  means  of  notification
forthwith,  which  shall  be  followed  by first class mail notification
within two business days of the  charge,  sentence  or  affirmance.  The
failure  to give notice shall not affect the validity of any indictment,
conviction, judgment or order.
7. Whenever a defendant is charged with murder in the first degree, or
a defendant has been charged with murder in the second degree as defined
in section 125.25 of the  penal  law  and  the  court  determines  after
confirmation  by  the  district  attorney pursuant to subdivision one of
this section that there is a reasonable likelihood the defendant will be
charged with murder in the first degree and the defendant is financially
unable to obtain counsel as determined by the court and an attorney  has
not  yet  been  appointed  to  represent  such defendant pursuant to the
provisions of this section, the capital defender office may  provide  or
arrange  to  provide temporary legal representation to the defendant. No
arraignment shall be delayed on account  of  any  representation  to  be
provided  or  arranged  pursuant  to  this  subdivision.   Any temporary
representation provided pursuant to this subdivision  shall  cease  upon
the court's appointment of an attorney pursuant to this section.
8.  Whenever  prior  to  entry of judgment a defendant is charged with
murder in the first degree, or a defendant has been charged with  murder
in  the  second degree as defined in section 125.25 of the penal law and
the  court  determines  after  confirmation  by  the  district  attorney
pursuant  to  subdivision one of this section that there is a reasonable
likelihood the defendant will  be  charged  with  murder  in  the  first
degree,   and  the  defendant  is  or  becomes  financially  unable,  as
determined by the court, to obtain  adequate  investigative,  expert  or
other  reasonably necessary services and the court has not appointed the
capital defender office to represent  the  defendant,  the  trial  court
shall  authorize  the  defendant's  attorney  to obtain such services on
behalf of the defendant and shall order the payment of  reasonable  fees
and  expenses  therefor;  provided,  however, that the court shall first
find in an ex parte proceeding that such investigative, expert or  other
services   are  reasonably  necessary  for  the  representation  of  the
defendant whether  in  connection  with  issues  relating  to  guilt  or
sentencing.  Upon  a  finding  that  timely procurement of such services
could not practicably await prior authorization, the court may authorize
the provision and payment for such services nunc pro  tunc.  Whenever  a
court  disapproves,  in whole or in part, a request for authorization or
voucher, the defendant  may  apply  to  a  justice  of  an  intermediate
appellate court for an order approving the request or voucher.
9.  Any  compensation,  fee  or  expense  to  be paid pursuant to this
section shall be a state charge payable  on  vouchers  approved  by  the
court  which  fixed  the  same, after audit by and on the warrant of the
comptroller.  Each claim for compensation  and  reimbursement  shall  be
supported  by  a  sworn statement specifying the time expended, services
rendered, expenses incurred and reimbursement  or  compensation  applied
for or received in the same case from any other source.  With respect to
compensation  to  be  paid  to  counsel  pursuant  to  this section, the

appropriate court shall review and determine the reasonableness  of  the
number of hours expended out of court.
10. Whenever it appears that a defendant is financially able to obtain
adequate representation or investigative, expert or other such services,
or  to  make  partial payment for such representation or other services,
counsel  shall  inform  the  court  and  the  court  may  terminate  the
assignment  of counsel or authorize payment, as the interests of justice
may dictate, to the capital defender office or the state.
11. The provisions of this section shall cease to apply on  the  tenth
day,  or  such  later  day  as  the court may determine to be reasonably
necessary to provide for successor counsel if prior  counsel  is  to  be
relieved,  following  the  entry of either a final judgment or order not
subject to further review by an  appellate  court,  or  a  prosecutorial
determination,  which  necessarily precludes an imposition of a sentence
of death, whereupon the provisions  of  article  eighteen-A  or  article
eighteen-B of the county law shall be applicable.
12.  Nothing  in  this  section  shall  be  construed to authorize the
appointment of counsel, investigative, expert or other services  or  the
provision of assistance, other than continuing legal education, training
and  advice,  with  respect  to  the  filing, litigation, or appeal of a
petition for a writ of habeas corpus in any  federal  court;  nor  shall
anything  in  this  section be construed to authorize the appointment of
attorneys, investigative, expert or other services  in  connection  with
any   proceedings  other  than  trials,  including  separate  sentencing
proceedings, of defendants charged with  murder  in  the  first  degree,
appeals  from  judgments  including  a  sentence  of  death, and initial
motions pursuant to section 440.10 or 440.20 of the  criminal  procedure
law and any appeals therefrom.