*1 [930 NE2d 296] 904 NYS2d Kimberly al., Hurrell-Harring et on Behalf of Themselves and All Others Similarly Situated, Appellants, v State al., et Respondents.
New York
Argued 6,May March decided *2 POINTS OF COUNSEL City New York Civil Foundation, Liberties Union New York (Corey Stoughton, Eisenberg, Christopher Arthur An Dunn and counsel), (Gary drew Kalloch of and Schulte Roth & Zabel LLP Greenberg, Stein, Daniel Azmina Jasani and Kristie M. Blase of counsel), appellants. pro I. Plaintiffs have stated claim for spective relief from violations of the constitutional (Gideon Wainwright, Rothgery v 335; to counsel. v Gillespie County, Moulton, 191; 554 US v 159; Maine People People Hilliard, Settles, v NY2d 584; 154; v 46 NY2d People People People Ross, 321; Baldi, 67 NY2d 137; 54 NY2d Cunningham, 203; Richardson, 49 NY2d McMann v 392.) People Appellate Witenski, II. The Division holding exclusively erred in that the to counsel is enforced through postconviction seeking individual actions reversal of a *3 (Strickland Washington, Luckey v conviction. 466 668; US v People Harris, Donovan, 1012; 860 F2d v 148; 13 NY2d N.Y. County Lawyers’ York, 424; v Assn. State New 192 Misc 2d of 153.) Supp Appellate Willi8ams, Nicholson v 203 F 2d III. The holding Division erred claims will interfere ongoing with their criminal cases such this action must be (New County Lawyers’ Pataki, dismissed. York Assn. v 188 Misc Luckey Oglesby Harris, 776; 1012; 2d v 860 F2d Matter Mc v of Kinney, Taylor Sise, NY3d 561; 7 Matter v NY2d 357; 33 Mat of Morgenthau Rothwax, ter v 902; Veloz 65 NY2d v Matter of of Erlbaum, 143; Littleton, 59 NY2d Reed v NY 150; 275 Strick 668.) Washington, justi land v US 466 IV Plaintiffs’ claims are allege comply mandatory ciable because failure to with (Klostermann legal Cuomo, constitutional standards. v 61 NY2d 525; Educ., Board Levittown Union Campaign v Free School Dist. of Nyquist, Equity 27; 57 NY2d Fiscal v State of for Equity Campaign 307; York, New New 86 NY2d Fiscal v State for of Jiggetts York, 893; Grinker, 411; 100 NY2d v NY2d Mc 75 Wainwright, Koch, 109; 335; Cain v 70 NY2d v 372 Gideon US US] Marbury King [5 Madison, 137; Cuomo, v 1 Cranch v 81 247; Wetzler, NY2d New York State Bankers Assn. v 81 NY2d 98.) (Barbara Attorney Albany General, Cuomo, M. Un-
Andrew D. derwood, Oser, Andrea Denise A. Victor Paladino Hartman and counsel), respondents. justi of I. Plaintiffs fail to state a (Gideon Wainwright, People ciable 372 335; claim. v US v Witen People ski, 392; Moulton, 159; v 474 v 15 NY2d Maine US Clau Washington, People dio, 556; 668; US 59 Strickland v 466 NY2d
11 People People Baldi, Turner, 476; Ar 137; v 5 NY3d v v 54 NY2d People People thur, Settles, 154; 46 NY2d v 325; 22 NY2d v 216.) declaratory D'Alessandro, 13 NY3d II. This action injunctive properly it would relief was dismissed because ongoing proceedings ade criminal and because interfere quate claims for the denial of other remedies exist to address (Matter Mordue, 348; v 68 NY2d to counsel. Rush of King, Matter Li 59; New v 36 NY2d Matter State York of of of pari Breslin, Owens, v 45 AD3d 731; v 70 NY2d Matter Patel of Rothwax, 902; v Matter Mor 1240; Matter Veloz 65 NY2d of of Oglesby genthau Erlbaum, v McKin 143; v 59 Matter NY2d ney, Clara, 561; Matter Beneke v Town Santa 9 NY3d County Swimming Nassau, 820; AD3d Sales v 88 AD2d Island 488.) Littleton, 990; O’Shea v (Morrie Hogan, Albany Attorney, I. Kathleen B. District Klein- counsel), Attorneys bart of for District Association State York, New amicus There no basis find curiae. viola tion of a ing in a action. Find counsel-related remediable civil damage ability such would do incalculable to the violation (Mat effectively litigate proceedings. such claims in criminal Wainwright, Beisheim, 329; ter Stream v 34 AD2d Gideon v Washington, People 668; u 335; Strickland v US People People Baldi, Turner, 137; 476; NY3d v Ca NY2d People People ban, 143; Benevento, 708; NY3d 91 NY2d Claudio, Morrison, 365; 83 NY2d Kimmelman v 872.) People Wiggins, *4 (Susan City
Moskowitz, Walsh, LLP, Book & York J. New counsel), Washington, Reimer, D.C., of Norman L. Ivan Walsh Dominguez, Albany, Willstatter, Getnick, & Michael Green White (Richard counsel), Lesk, Ann Plains Willstatter of New York City, Yaroshefsky, Green, Bernhard, Bruce Adele Ellen C. White Flushing, Jenny Rivera, Plains, Zeidman for National and Steve Lawyers others, amici cu Association of Criminal Defense postconviction, I. remedial is the riae. The Strickland standard seeking wrong prospective in a action relief standard class claim system-wide prevent the State of to halt and deficiencies how obligation provide indigent New York meets its constitutional (Strickland of v defendants effective assistance ington, counsel. Wash- Wright Taylor, v 668; 362; v 529 US 466 US Williams People N.Y., 16; West, 277; 505 State 56 F3d US Kieser v of of Luckey Rompilla Beard, Harris, F2d 374; v 545 v 860 US Luckey appeal Miller, 673; F2d v 976 remand sub nom. after Cronic, States, 648; v United 425 United States v 466 US Geders 12 Holloway Kenny Arkansas, v A. rel. Winn 80; ex 475;
US 435 US Perdue, v 1353.) 356 F 2d II. The Sixth Supp right Amendment effective assistance of counsel is broader than the to as sistance trial and requires more than the mere appointment (Strickland Washington, Rothgery v v of counsel. 466 US 668; County, Williams, v Brewer 191; 554 US 387; 430 US Gillespie Michigan Higazy Templeton, Jackson, v v 475 625; US 505 F3d Kirby Alabama, Illinois, Coleman v v 161; 1; 399 US 406 US Gouveia, Smith, United States v Estelle 682; v 180; 451 Illinois, 220.) Moore v 454; US III. The York Con New protection stitution affords broader the right of to effective as (People v El of is cognizable sistance counsel and prospectively. People People well, Belton, v v P.J. 50 231; 49; NY2d 55 NY2d People People Video, Torres, v v 296; 68 NY2d 74 224; NY2d People People Dunn, Robinson, v ex 77 NY2d 19; 341; 97 NY2d Niagara County, People Price, rel. Ransom v v 622; 78 262 NY People People Settles, Benevento, v v 410; 154; 46 NY NY2d 708.) NY2d (Lawrence Gallagher LLP, Farr &
Willkie O. York City New Portnoy Joseph Kamin, Moor M. A. Azam of counsel), for Courts, the Fund for Modern curiae. amicus I. Under New doctrine, political York’s the instant case is question justiciable. (Matter Inspection, New State Sec. & York Law Enforcement Empls., 82, AFSCME, Cuomo, Dist. Council AFL-CIO v of Dairylea Coop, Walkley, Matter v Jones 233; 6; NY2d 38 NY2d Washington, Beame, v Strickland v 402; 668; 45 NY2d County Lawyers’ York, New York v New Assn. State AD2d Jiggetts Krup Grinker, Matter Anderson 69; 411; 75 NY2d sak, Codd, Bruno v of Educ., Board 582; 40 NY2d 397; 47 NY2d Nyquist, Levittown Union Free School Dist. v Klos 27; 57 NY2d Cuomo, 525.) termann NY2d alleged II. The justiciability denying deficiencies the constitutional criminal defendants other further confirmed justi courts which have held that consistently dispute ciable. III. the amended Arguments complaint presents (Klostermann nonjusticiable are flawed. political question Campaign Equity Cuomo, Fiscal v State 525; 61 NY2d Campaign Equity York, New Fiscal v State 307; York, Board Levittown Free of Educ., New Union NY2d *5 Lawyers’ Nyquist, County Dist. v New York School 57 27; NY2d Krupsak, Pataki, v Anderson v Assn. Matter of 776; Misc 2d 188 Marbury Madison, v Bruno 137; 397; NY2d 1 [5 US] 40 Cranch Codd, 582.) v IV claims is Adjudicating 47 NY2d constitutional calling within the it is the Judiciary’s purview, highest
13 (Duke Study v Environmental Power Co. Carolina for the courts. People McCormack, Group, Inc., 486; 395 59; Powell v US 438 US People 474; Scott, Klostermann LaValle, v 79 NY2d 88; v 3 NY3d Free Educ., Levittown Union Cuomo, 525; 61 NY2d Board v of Equity Campaign Nyquist, 27; Fiscal Dist. v 57 NY2d School for Alabama, 287 US York, Powell v 893; v New 100 NY2d State of County Lawyers’ York, 294 v New York Assn. State 45; New of 69.) complaint significant presents issues AD2d V. amended individual, and familial result serious and immediate (Matter Inspection, &Sec. harms. New York State societal of Empls., 82, AFSCME, AFL-CIO Dist. Council Law Enforcement County Lawyers’ Cuomo, 233; v York Assn. v State 64 NY2d New York, 24 York, 761; 196 Misc 2d Baba-Ali v State New New of of People Claudio, v 576; 76; United States 3d v 83 NY2d Misc Twomey, Cronic, 648; 466 US United States ex rel. Williams v Wainwright, 335; Ala US Powell v 634; F2d Gideon v 372 510 County Lawyers’ bama, Assn. v State New 45; 287 US N.Y. of 759.) Richardson, York, v 397 424; 192 Misc 2d McMann US (Lee City LLP, Kibbe York S. Richards Richards & Orbe New counsel), Greenspan III, S. and Rosen of and Arthur Eric S. University Brennan Center Justice at New York School for of (David counsel), Mi Alicia of for Law S. Udell and L. Bannon system others, I. The chael A. Battle and amici curiae. deficient defending indigent alleged undercuts integrity prosecutors damages the crimi the work of of system. Herring justice (People v Pelchat, 97; v NY2d nal 62 People Wainwright, York, 335; v 853; Gideon New People Vilardi, DiSimone, 67; 402; v 23 76 NY2d Geor Misc 3d v gia People McCollum, Settles, 154; 42; 46 v v NY2d People People Paveras, Santorelli, v 10 NY3d 412; v 95 NY2d 227.) responsibility power have the II. Because courts judicial protect integrity system, this should Court of justiciable. (Campaign Equity v Fiscal find claims Lawyers’ County York, 893; New 100 NY2d New York State of People Ramos, York, 69; v v 294 AD2d Assn. State New Wehringer Brannigan, 980; 27; AD2d 89 NY2d v NY2d Lawyers’ County Silver, 102; N.Y. Matter Maron v 58 AD3d Codd, York, 424; v 192 Misc 2d Bruno Assn. v State Newof Mayor City McCoy N.Y., Misc 2d v 582; Matter NY2d 508.) remaining objections to III. The State of New York’s People justiciability (People Baldi, 137; 54 NY2d lack merit. 758; Stultz, Safir, Matter Swinton v 93 NY2d 277; 2 NY3d People People Osorio, 80; 148; Donovan, 75 NY2d Henry Schein, Inc., Andon v 302-304 AD2d Castillo v *6 14 Assoc.,
Mott York, St. 740; 94 NY2d v State Kimmel New 302 of Corp. Realty 908; AD2d 511 People Co., W.232nd Owners v 98 Jennifer 705.) 144; Rivera, NY2d v 71 NY2d (Daniel City LLP, Davis Kolb, Polk & Wardwell York F. New O’Neill, Daniel J. Marcovitz and Lara of Samet Jennifer (Steven counsel), Legal Society and Aid Banks and Janet Sabel counsel), Legal Society, of for Aid amicus curiae. I. The to meaningful represents and effective of assistance counsel far wrongful (Argersinger more than of avoidance convictions. v Wainwright, People Hamlin, 407 25; US Gideon v 335; 372 US v People Hughes, Witenski, 392; 15 NY2d v 15 172; NY2d Powell v Alabama, 45; Cronic, 287 US United 648; States v Mc 466 US People Richardson, Droz, Mann v 759; 457; v 39 NY2d People Washington, Baldi, v 137; 54 NY2d Strickland v 668.) judicial remedy necessary appropriate II. A and where (New systemic. County ineffective of assistance counsel is York Lawyers’ York, Assn. v New 294 69; State AD2d New York of County Lawyers’ York, v Assn. State 761; New 196 Misc 2d of Matter Safir, 758; Cuomo, Swinton v 93 NY2d Klostermann v of Codd, NY2d 525; 582; 61 v Bruno 47 NY2d Indiana Protection Advocacy Dept. Commissioner, & Servs. Commn. v Ind. Cor of Supp Oregon Advocacy rection, F 872; Mink, 642 2d Ctr. v Marbury [5 US] Campaign 1101; Madison, F3d v 137; Cranch Equity York, Fiscal v 893; State New 100 NY2d Board for Nyquist, Educ., Levittown Union Free School Dist. v NY2d 27.) Systemic system indigent III. deficiencies in a defense ability assigned satisfy profes constrain the to their obligations sional clients. Albany, Gradess,
Jonathan E. for O’Connor New Alfred State York Defenders Association, amicus curiae. Ineffective as adequately sistance counsel claims cannot be within resolved litigation many context of criminal case counties New public York because overburdened and underfunded defense lawyers motions, CPL do not file article neces which are sary adjudication proper (Rothgery for of these claims. v Gillespie County, Luckey Harris, 191; 1012; v 860 F2d People People Linares, Brown, 507; 852; v 2 NY3d v 45 NY2d People People Rivera, 419; 44 AD3d Whitfield, 688.) People Noll, 24 AD3d City, Barry
David Loftis, New York C. Scheck and Peter J. Project, for York’s Inc., Innocence amicus curiae. New Neufeld system indigent guarantee does defense New York’s assis- to effective of their scope the full will receive poor (466 Washington remedy of Strickland Additionally, tance. [1984]) constitu- systemic remedy is insufficient US 668 in New defense system The current wrong. tional courts, both reform subject York should be all criminal defendants rights the constitutional ensure *7 are convicted innocent defendants minimize the risk that 154; Settles, 46 NY2d commit. v (People crimes did not they Baldi, 137; 54 NY2d Claudio, 556; v People v 59 NY2d People Caban, 143; Virginia, v West Youngblood v 5 NY3d People Deskovic, 201 Greene, 263; v 867; People 527 US Strickler 1088; 354, People 579, 1003, 210 F3d AD2d 83 NY2d Newton, 991, Gramley, Porter 150 AD2d 1042.) Gilmore, sub nom. Porter F3d cert denied OF THE COURT OPINION Chief Judge Lippman. Constitution Amendment to the United States Sixth to . . have the As- right a criminal defendant “the .
guarantees
v Wain-
defence,”
for his
and since Gideon
sistance of Counsel
[1963])
(372
established that
US 335
it has been
wright
the State
rea-
by
by
denied
effectively
entitlement
a
Gideon is not
lawyer.
inability
pay
son of
defendant’s
the Constitu-
either as an
what
expression
now controversial
Serious
in elemental
fair play.
tion
or as an exercise
requires
however,
jurisdictions
arisen in this and other
have,
questions
(see
met
in
being
practice
mandate is
as to whether Gideon’s
Ct.,
442 Mass
in
Superior
Lavallee v Justices
e.g.
Hampden
In New it is counties, where to the State’s under Gideon obligation and ac- resources county for the most discharged, part, 18-A, Law arts County rules and practices to local cording 18-B). criminal action, various in this defendants Plaintiffs the action’s commencement at the time of ongoing prosecutions and Suffolk coun- Ontario, Onondaga, Schuyler in Washington, in es- involving what ties, arrangement, contend that unpopular and politically unfunded costly, largely sence them deprive has functioned local upon government, mandate defendants situated similarly and other constitutionally statutorily counties of aforementioned seek a declaration They rights. guaranteed representational represent seek to they and those of the class their rights being injunction abridg- violated and an to avert further right ment of their counsel; do not seek relief within the criminal cases out of which their claims arise. appeal dispositions
This results from of defendants’ motion pursuant nonjusticiable. to CPLR 3211 to dismiss the action as Supreme Court denied motion, but in the decision order (66 [2009]) sought now granted before us AD3d 84 relief was Appellate Division. That court held that there was no cognizable claim for ineffective assistance of counsel other than seeking postconviction relatedly, one relief, and, that violation of a criminal defendant’s to counsel could not be vindicated proceeding, particularly object in a collateral civil where the compel the collateral action was to an additional allocation of public properly legisla- resources, which the court found to be a prerogative. They tive Two Justices dissented. were view that violations of the to counsel were actionable contexts postconviction including other than claims for relief, a civil ac- brought by plaintiffs. recognizing tion such as that While *8 competing priorities ordinarily choices between social for Legislature, judgment, the this did in not, the dissenters’ excuse Judiciary obligation provide remedy the from its a for viola- (id. rights 95), especially tions of constitutional at when the al- leged necessarily with, violations were “so interwoven and implicated], proper functioning system of the court itself’ (id. 96). at appealed Appellate
Plaintiffs have as of from the (a) (b) (1). pursuant Division’s order to CPLR 5601 and We now qualifications action, reinstate the albeit with some substantial upon scope. its justiciable
Defendants’ claim that the action is not rests principally cognizable first, on two theories: that there is no apart claim for ineffective assistance of from one seek- ing recognition relief conviction, second, from a and that of a systemic claim for relief of the sort seek will involve performance properly legislative in courts functions, notably determining public most how resources are to be al- located. conditioning
The first of these in theories rooted case law constitutionally upon findings relief for ineffective assistance attorney performance, specific total, in when viewed its case aspect, objective has both fallen below the standard of reason- (see Washington, ableness Strickland v 687-688 [1984]), prejudice, respect and resulted either with to the (id. 694) proceeding or, outcome of the at under this Court’s “meaningful somewhat less outcome oriented standard of assis- (People tance,” to the defendant’s fair trial v Ben- evento, 713-714 Defendants reason that prescribed, Strickland, at Ben- deferential 712) highly inquiry evento, 91 NY2d and context sensitive adequacy particular performance into the and effect of counsel’s prosecution cannot occur until a conviction, has concluded in a appropriate that, conviction, once there is a avenues of appeals relief are direct and the various other established means challenging conviction, such as CPL article 440 motions petitions corpus They writs habeas or coram nobis. urge, present plaintiffs upon essence, can, based ongoing prosecutions, possess ripe their no claim of ineffective might assistance and that eventually ineffective assistance claims that brought by given would, them the nature of the individually they claim, have to be asserted and determined; argue finding constitutionally performance— that a deficient necessarily particular one rooted in the circumstances of an in- predicate dividual case—cannot serve as a relief. Supreme Indeed, remind us that the Court in Strickland pointedly purpose has noted that “the of the effective assistance guarantee improve qual- of the Sixth Amendment is not to ity legal representation, although goal ais of consider- importance legal system[,] [but rather] able to the . . . to ensure (466 689). that criminal defendants receive a fair trial” at arguments possess These a measure of merit. A fair read ing precedents supports of Strickland and our relevant state de judicial fendants’ contention that effective assistance is a *9 designed protect construct to do no more than an individual de adjudication; concept capable fendant’s to a fair it is not a expansive application of to remediate deficiencies. The concept explicated in cases which the has been in this con any broadly ap nection notable for their intentional omission of plicable defining performance Indeed, standards. Strickland is any specific clear that articulation of standard more than that objective by of reasonableness is neither warranted the Sixth compatible objectives: Amendment nor with its specific guidelines appropriate. “More are not simply Sixth ‘counsel,’ Amendment refers specifying particular requirements of effective assis- instead, legal profession’s
tance. It relies on the justify maintenance standards sufficient to of presumption fulfill the role law’s that counsel will adversary process that the Amendment envi- attorney proper performance measure of sions. The simply prevailing under remains reasonableness professional norms . . . presenting claim,
“In case an ineffectiveness performance inquiry must be whether counsel’s considering all the cir- assistance was reasonable particular rules cumstances ... No set detailed satisfactorily conduct can take account for counsel’s by variety circumstances faced defense regard- range legitimate counsel or the decisions Any ing represent best to a criminal defendant. how such set of rules would interfere with constitu- tionally protected independence counsel re- in mak- strict the wide latitude counsel must have ing Indeed, tactical the existence of decisions. guidelines representation for could distract detailed overriding vigorous from the mission of (466 advocacy of the defendant’s cause” US at 688- omitted]). [citations too reasons eschewed the articulation We have similar applicable performance specific, generally standards more judging in the context of determin- the effectiveness of counsel ing constitutionally representation been mandated has whether People provided People Baldi, Benevento, 91 NY2d at say perform- This is not to that 146-147 highly assuring in that are not relevant ance standards provided judging constitutionally effective assistance attorney’s performance particular has in a case an whether use- do not and cannot deficient, been that such standards concept fully as- of effective define the Sixth Amendment-based highly imposition of such standards sistance. While appropriate salutary, as an exercise it is not under Strickland jurisprudence. Amendment Sixth very important
Having add the this, however, we would said expressly premised approach on caveat Strickland’s underlying right repre- supposition the fundamental in a man- the State has been enabled sentation under Gideon justify presumption standard ner that would *10 ordinarily objective be satisfied Strick- will reasonableness 687-689). questions properly land, 466 US at raised in this Amendment-grounded go Sixth action, think, we not to whether ineffectiveness has assumed dimensions, but rather to obligation whether the State has met its foundational under provide legal representation. Gideon to general prescriptive
Inasmuch as relief is unavailable incompatible adjudication alleging indeed with the of claims constitutionally ineffective counsel, assistance of it follows prospective systemic claims for relief cannot stand if gravamen attorneys appointed their not, for them have meaningful representa- far,
so afforded them and effective position, evidently tion. While it is defendants’ and was that of Appellate majority, complaint Division contains only performance-based claims for ineffective assistance, our ex- pleading amination of the us leads to a different conclusion. According complaint, plaintiffs—two to the 10 of the 20 from Washington, Onondaga, two from two from Ontario and four Schuyler County—were altogether representation from without arraignments underlying at the proceed- held in their criminal ings. Eight unrepresented plaintiffs jailed of these were after they bail had been alleged set in amounts could not afford. It is experience plaintiffs that the of these is illustrative of what is fairly practice common in the aforementioned counties of ar- raigning leaving particu- defendants without counsel and them, larly relatively when unrepre- accused of offenses, low level subsequent proceedings pleas sented in where are taken and critically important legal place. other transactions take One of unrepresented these remained for some five months alleged guidelines and it is that the absence of clear and uniform reasonably commonly related to need has resulted in denials of representation subjective defendants based on the judgments jurists. of individual foregoing allegations outright nonrepre-
In addition to the allegations sentation, the contains to the effect that although lawyers eventually nominally appointed were plaintiffs, they they were unavailable to their clients—that completely conferred little, all, with them if at were often unre- sponsive urgent inquiries requests jail, to their from important rights sometimes for end, months on waived consulting ultimately appeared them, and to do little more on plea their behalf than act offers, as conduits for some of which purportedly highly repeatedly alleged were unfavorable. It is appearances, that counsel missed court and that when did *11 20 proceed, they prepared
appear to because were not often having previously entirely case, new the the matters were to by similarly unprepared handled other counsel.1 There are been appointed allegations for at least one of also that the counsel unqualified seriously the was conflicted and thus representation. the undertake stage allegations complaint the
The
of the
must at
plaintiffs’
litigation
favor,
true and construed in
af
be deemed
(Leon
every
fording them the
reasonable inference
v
benefit
[1994]),
object
very
Martinez,
83,
the
limited
be
87-88
any cognizable
ing
is
claim for relief made
to ascertain whether
(id.). If
that where
in
claim,
out
there is a discernible
is
the
difficulty
present
quiry
proof
end;
of its
is not the
must
the
allegations,
view,
in our
The above summarized
state
concern.
cognizable
claims.
Sixth Amendment
regardless of
defendant,
It is clear that a criminal
where-
“
every
guiding
at
withal,
entitled
of counsel
is
‘the
hand
” (Gideon Wainwright,
step
proceedings against him’
v
in the
[1932]).
quoting
45,
345,
Alabama,
v
69
US at
Powell
(see
arraignment
Rothgery Gillespie
attaches at
[2008])
pres-
County,
entails the
554 US
Recognizing importance crucial process basic and due liberty to which defendant’s extent claim, by plaintiffs as on “lack consistent referred to one based 1. This County plaintiffs. representation,” each four Suffolk vertical is raised however, is, pleas counties are often elicited alleged that in the at issue 2. It arraignment. unrepresented defendants at from (3) may expressly affected, interests provides then be CPL 180.10 “right arraignment aid to the of counsel at the every subsequent stage at of the action” and a court forbids going proceeding from defendant, forward without counsel for knowingly agreed
unless defendant has (CPL [5]).3 proceed Contrary in counsel’s absence 180.10 to de- suggestion nothing dissent, fendants’ and that justify presence statute be read to the conclusion that the arraignment dispensable, except of defense counsel at ever option, affecting a defendant’s informed when matters de- *12 liberty pretrial ability subsequently fendant’s or to defend against charges are the to be Nor is there merit de- decided. suggestion fendants’ that the Sixth Amendment to counsel 209). yet fully implicated Rothgery, not at allegedly The cases cited the dissent in the which conse- quential arraignment entry guilty plea event at was the of a not (United Fay, [2d 214, States ex rel. Caccio F2d 350 215 Cir 1965]; United ex Denno, 809, States rel. Combs v F2d 812 357 [2d Hussey Fay, Supp 1966]; Cir United States ex rel. 220 F [SD 1963]; Allard, 2005]) NY Holland v WL [ED prop- US Dist LEXIS 46609 NY do not stand for the general optional arraign- osition that as a counsel, matter, is proposition plainly Indeed, ment. a such be would untenable arraignments routinely, since and in New York as a matter of statutory design, encompass affecting matters a defendant’s lib- erty ability against charges. and to defend The the cited cases very proposition hap- rather stand for the limited that where it pens arraignment that what occurs at does not affect a defend- adjudication, ground ant’s ultimate a defendant not on nonrepresentation entitled to a of his her reversal or conviction. they here Rather, Plaintiffs do not seek that seek relief. prospectively provision to assure the of what the Constitution undoubtedly guarantees—representation stages at all critical proceedings. arraignment the general York, criminal In New as a is, stage. matter, a such purposes period
Also “critical” for Sixth Amendment is the arraignment factually between and trial when a case must be any 3. It appear plaintiffs arraigned does not who that were without jailed consequently counsel and when could not afford the bail fixed 7) (at agreed proceed lawyer. without a The dissent’s assertion 32 n is, participate hearings were “forced” in bail counsel without being record, apart support given from irrelevant the clear statute, entitlement to counsel under the and indeed the Constitution. respecting grand jury developed researched, decisions plea negotiations pretrial testimony made, conducted, and mo deprive person Indeed, clear “to of counsel tions filed. during it is damaging period prior more than to trial (Maine during Moulton, itself’ of counsel the trial denial plain allegations complaint that in This contains numerous stages specific simply provided at was not critical cases proceedings. additionally allega- contains deprivations justify these tions sufficient inference that significantly widespread practices; may be illustrative of more allegations particular note in this connection are subjec- representational premised denials are on numerous cases raising possible highly indigency, tive and variable notions allegations process equal protection concerns. These due Strickland, under claim, not for ineffective assistance state under denial of the to counsel Gideon. but basic variously allega- Similarly, interpretable, the numerous while although appointed, counsel, were tions to the effect that virtually no efforts on their nominal uncommunicative, made period subsequent during very to ar- critical clients’ behalf *13 important rights raignment, and, indeed, without autho- waived may reasonably clients, understood al- rization from their be representation. lege nonrepresentation than ineffective rather representational representation a certain basic Actual assumes ques- relationship. allegations here, however, raise The serious may really relationship said to tions to whether such as many plaintiffs putative and their have existed between attorneys cumulatively may be understood to raise the and attorney-client pairings merely possibility that nominal distinct regularity, subject degree of al- a fair counties with occur funding staffing inadequate legedly and because of very providers. that It is basic defense “[i]f ‘for’ the accused’s no actual ‘Assistance’ guaran- provided, is then the constitutional ‘defence’ ‘could To hold otherwise has been violated. tee appointment and the of counsel into sham convert compliance nothing with the more than formal given requirement that an accused be Constitution’s guaran- The Constitution’s the assistance of counsel. by be satisfied of counsel cannot tee of assistance Avery appointment.’ Alabama, 308 v. formal mere (1940) (footnote omitted)” (United U. S. Cronic, States v 654-655 development it turn While out after further factual really representation issue is the afforded what at whether subject litigated properly not in this civil ac- was effective—a allegations juncture, construing tion—at this before us as light complaint plaintiffs, must, in we most favorable to states a claim for denial counsel constructive compliance reason of insufficient with constitutional Gideon,4 allega- mandate of The dissent’s conclusion that these performance claims, tions assert based and not claims for nonrepresentation, premature. picture us seems to The which emerges procedurally appropriate reading fair from a and regularity going is that defendants are some with unrepresented arraignment subsequent stages. at critical noted, As half the claim to been have without counsel arraignment, nearly effectively claim at all to have been left representation lengthy periods subsequent to ar- raignment. together “lumping If all were involved awas generic (dissenting ineffective assistance of counsel claims” 30) op agree cognizable we with the would dissent no claim had stated, been but we do detailed, not think that this complaint meticulously setting multi-tiered forth the factual bases of the individual claims and the manner which are linked to and illustrative of broad deficiencies is susceptible of such characterization. seeking preconviction prospective
Collateral claims relief for absolute, core denials of the assistance incompatible cannot be to be understood Strickland. These contextually typi- sort sensitive claims that are cally alleged. when basic, involved ineffectiveness question presented by where, here, unadorned such claims as poor, the defendant-claimants are is whether the State has met *14 obligation provide counsel, its all the cir- to not whether under performance inadequate prejudi- cumstances counsel’s or was outright right Indeed, cial. in cases of denial of the to counsel prejudice presumed. recognizes itself, course, is of Strickland the critical distinction between claim for ineffective assistance alleging simply and one that to the of assistance specifically acknowledges counsel has been denied that the distinguish 4. We note Cronic is to this distinct claim from that careful 11). (Cronic, one for 466 US at n ineffective assistance may disposed inquiring latter kind of claim of to be without as prejudice: prejudice
“In contexts, certain Sixth Amendment is presumed. Actual or constructive denial of the assis- altogether legally presumed tance of counsel result prejudice. in So are kinds of various state interference with counsel’s See assistance. United [466 US] Preju- Cronic, States v. at and n. 25. likely case-by- in dice circumstances these is so that inquiry prejudice case into is not worth the cost. Ante, Moreover, at such circumstances 658. involve impairments that the Sixth Amendment easy identify and, for that reason and because the directly easy prosecution responsible, for the (466 692). government prevent” allegations falling precisely before us state claims within category. points true, out, that described It is as the dissent category, frequently claims, even within this have been most postconviction, litigated it but does not follow from this post- cognizable apart from circumstance that are not simplicity autonomy conviction context. Given the a claim nonrepresentation, opposed truly involving for one the ad- as equacy attorney’s performance, of an there is no reason—and dissent—why certainly in such claim none is identified brought of a cannot or should not be the context completed prosecution.
Although perceive otherwise, real defendants contend we no allowing proceed impede danger claims to would these orderly plaintiffs’ underlying progress criminal actions. Those part, have, have, concluded,5 and we actions most been any event, the issue of ineffective removed from action eliminating any possibility assistance, that the collateral thus might adjudication generalized assistance claims of ineffective judgments of convict be used to obtain relief from individual recognition emphasize ion.6 Here we our should have claims for constructive denial circumstance, is, light of this 5. that the action Defendants’ contention exception to the mootness doctrine moot overlooks the well-established typically evading review Matter recurring public importance claims of Corp. Clyne, 714-715 Hearst after 6. if claims are found to meritorious It follows that their criminal trial, to vacatur of a determination will not entitle them such And, raised, although specifically we the issue is not note convictions. *15 nonjusticiable be as be viewed as a back door for what would specifically seeking remedies of ineffective assistance sertions hiring, attorney performance, such as uniform addressed to cognizable training practice that a standards. To the extent action, is in collateral civil Sixth Amendment claim stated in at is it is to the effect that one or more of the five counties provision for the of counsel sue the basic constitutional mandate being stages at all is at risk of to left unmet defendants critical systemic by conditions, the of reason of because personal failings poor professional decisions of individual indigents subject attorneys. While the defense of five many ways might perhaps improved in that the counties Legislature explore, the much narrower focus of the free judicial remedy constitutionally sought must be based here simply every indigent actual to assure that defendant is afforded Plainly, not, counsel, assistance of as Gideon commands. we do narrowing scope even while the of this action as we believe the requires, deny plaintiffs remedy law violations suggests. Gideon, as the dissent It rather the dissent any prospect obtaining would foreclose from such proposed And, done, relief. when all is said and the dissent’s premised solely upon availability denial is the of relief from a judgment logic, public law, of conviction. Neither nor nor sound policy preclusive dictates that one form of relief should be other. against fairly sustaining the
As
minimal risks involved
closely
nonrepresentation
recognized
defined claim of
we have
weighed
very
dangers
alleged
must be
serious
that the
denial
“
rights
person
[of]
all
an
of counsel entails.
‘Of
accused
represented by
has, counsel is
far the most
to be
pervasive
ability
rights
for it affects his
to assert
other
he
” (United
quoting
Cronic,
466 US at
have’
States v
Procedure,
L
Schaefer, Federalism and State Criminal
70 Harv
right, then,
1, 8
The failure to honor this
cannot
Rev
reliability
adversary pro-
presumed
impair but be
justice
system
through
our
cess
which criminal
is under
that,
this action will not
same connection
in view of the circumstance
(cf.
progress
outcomes of
criminal actions Matter
disturb
or
Rothwax,
Owens,
[1987];
Lipari
Matter Velozv
It is not clear that defendants contend that stated nonjusti- claims the denial of assistance of counsel would be appellate presentation, ciable; oral, their both written and has principally alleged been to the effect that the claims exclusively predicated performance, on deficient a characteriza- rejected. Supposing, persisting, however, tion which we have nonjusticiability, it is it relevant contention of clear that would right be without merit. This is obvious because the plaintiffs poor person would enforce—that of a accused of a provided to crime have counsel for his or her defense—is the very already same that Gideon has commanded the states necessity. to honor as a matter of fundamental constitutional argument justiciable There is in no what was Gideon beyond power now of a court to decide. remedy possible course, in is,
It that a this action would appropriation perhaps, particularly necessitate the of funds and scarcity, reordering legislative priorities. in a time of some argument upon But this does not amount to an which a court remedy might obligation provide a be relieved of its essential to Marbury for violation of a fundamental constitutional right, [5 US] [1803] [“every Madison, Cranch when remedy, every injury proper withheld, must have a and its redress”]). consistently have held that enforcement of a clear
We
statutory
proper
constitutional or
mandate is the
work of the
(see Campaign
Equity
York,
courts
Fiscal
v State New
Jiggetts
[1995];
Grinker,
[1990];
Mc-
NY2d 307
Cuomo,
Koch,
[1987];
Cain v
Accordingly, Appellate the order of the Division should be by complaint reinstating the in accord- modified, costs, remitting opinion, case to that court to ance with this and the appeal on the to that consider issues raised but not determined court, and, modified, affirmed. as so (dissenting). There is doubt that there are J. no Pigott,
inadequacies delivery legal in in services the by pointed state, as out the New York State Commission on Indigent Services, Future of Defense convened former Chief despite Judge Kaye. respectfully dissent, however, because, I my complaint this, view, claim, in fails to state a either here by plaintiffs—ineffective proffered under the assistance theories deprivation right at a critical of counsel and of the counsel theory stage (arraignment)—or under denial” the “constructive complaint by majority. read into the majority rightly rejects plaintiffs’
The ineffective assistance analy- case-by-case action; cause such are limited to a claims proceeding. sis and dismissing be redressed in a civil Rather than cannot majority replaces however, the it with claim, my that, view, is noth- “constructive denial” cause of action ing claim under another more than an ineffective assistance name. allegations complaint into two
The can be broken down (1) “meaningful categories: deprivation as- and effective (2) deprivation counsel,” sistance arraign- stage” proceedings, i.e., the counsel at a “critical many: category lack of a are ment. The claims under the former attorney charges opportunity their discuss the sufficient participate preparation by defense; or in their counsel; lack of investigative representa- denial of services; lack of “vertical assigned phone tion;”1 refusal of counsel to return calls or ac- cept inability messages assigned calls; collect to leave on answering counsel’s box, machine due to a full voicemail etc. majority rejects complaint main claim that the states a cause of action for ineffective assistance of counsel (466 [1984]),2 Washington finding under Strickland v US 668 “a arguments measure merit” to defendants’ that such claims premised constitutionally per- on trial counsel’s deficient (majority formance and do not form the basis for relief 17). op agree, Appellate at I affirm the would Division’s de- regard, termination in that because the Strickland standard is limited an to whether individual has received the assis- effective alleged systemic tance of counsel and cannot be used to attack allegations complaint support failures, and the no broader reading. rejection stopping
Rather than at its of the Strickland stan- respect allegations, majority however, dard with to these ad- theory, stating vances a third and reads the as a claim upon counsel, i.e., “constructive denial” of the having appointed, plaintiffs received “nominal” representation, question such that there is a toas whether the compliance counties with the mandate of were constitutional 22-23). (majority op Gideon *18 support majority rationale, In of this relies on United (466 [1984]), recognizes States v Cronic US 648 a “nar which exception” requirement row to Strickland’s that a defendant asserting an ineffective assistance of counsel claim must demon (Florida performance prejudice Nixon, strate a deficient [2004]). Cronic, too, In inef words, other is an day fective assistance of counsel case—decided on the same as Strickland—but one that allows the courts to find a Sixth “ inquiring Amendment violation ‘without into counsel’s actual performance requiring or the defendant to show the effect it likely [exist] trial,’ had on the when ‘circumstances that are so Presumably jurisdictions, this refers to the fact that in some a defend- 1. lawyer represented by court and have a ant be one local criminal lawyer assigned superior different court. majority 2. Much of the focus of the is on the so-called Strickland stan- dard, However, respect “meaning- with to ineffective assistance of counsel. representation” obviously applied in ful standard remains the standard to be Baldi, People v this state NY2d litigating their effect prejudice that the cost the accused ” (Wright unjustified’ Patten, 552 US particular v Van case is a omitted]). [2008] [citations 120, 124 exception” applies cases to individual “narrow Cronic’s (1) “complete i.e., counsel”; denial of there has been where: stage trial; a critical counsel at the defendant is denied (2) subject prosecution’s entirely case to fails to “counsel (3) testing”; meaningful likelihood that or “the adversarial provide fully competent lawyer, assis- effective one, could even a appropriate prejudice presumption small that a tance is so (466 inquiry US at of the trial” the actual conduct into 659-660). only point holding out that the instructive, if
Cronic’s reaching Supreme that, in in- conclusion the obvious Court was gen- inadequacy counsel must or cases, dividual the absence exceptions.3 erally three narrow one of those fall within the Strickland is a branch from Constructive denial of counsel attorney’s only appointed applying tree, representation Cronic when egregious if defendant had no that it’s as is so attorney ineffec- Therefore, a defendant received at all. whether is entitled to a under Strickland or tive assistance of counsel presumption prejudice under Cronic is determination proceeding ended; nei- has can made the criminal after proceeding approach like the one at bar to a ther lends itself plaintiffs allege prospective of their Sixth violations where rights. Amendment explain majority conclude, it on one how can does not judicial designed construct assistance is a
hand, “that effective protect an defendant’s more than individual to do no expansive ap- adjudication” concept capable of and “is not a fair plication (majority op at 17 to remediate deficiencies” [emphasis supplied]), hand that a “construc- on the other theory potentially apply to this denial” could tive action, had who, commenced when class individuals cases. Courts review- of their criminal not reached a resolution by looking ing have done so rare constructive denial claims *19 rely any on of the was not entitled 3. Even the defendant Cronic notwithstanding the fact that his opinion, exceptions delineated in that and, days just 25 shortly trial date before the retained counsel withdrew practice lawyer estate trial, appointed young with a real the court before had taken the Government represent in a mail fraud case that defendant 4V2 at trial any errors counsel years investigate. Supreme Court held that using test. the Strickland were to be examined 30 particular egregious attorney
at the
par
behavior of the
in the
representation
ticular
e.g.
case
has concluded
Bur
after
[5th
Johnson,
dine v
262 F3d
2001],
Cir
cert denied sub
[2002] [defense
nom. Cockrell v Burdine,
Addressing plaintiffs’ theory—deprivation second arraignment—the majority posits to counsel at the cognizable have stated a claim because 10 of them arraigned eight counsel, were of those remained in (ma- custody because could not meet the bail that was set 19). jority op “ undisputed ‘requires
It that a criminal defendant
guiding
every step
proceedings against
hand of counsel at
” (Gideon Wainwright,
quoting
him’
[1963],
majority’s
Alabama,
Powell v
But the
any arraignment
bare conclusion that
conducted without the
presence
proceedings
of counsel renders the
a violation of the
reality.
Sixth Amendment flies in the face of
Nor, my view,
4.
generic
are such claims
different from the
ineffec-
routinely analyzed by
tive assistance of counsel claims
state courts under this
“meaningful representation”
State’s
standard as enunciated in Baldi.
*20
point.5 That
180 illustrates
CPL article
The framework
arraign-
upon
defendant,
provision presupposes that a criminal
indigency,
yet
may
or, due to
counsel
retained
ment,
requires
not have
that, in
mandates
appointment
180.10
one. CPL
the
copy
furnishing
apprising
with, a
him
of,
him and
addition
(see
[1]),
against
court must
charges
the
him
CPL 180.10
the
unrepresented
to,
he is entitled
defendant
inform an
also
purpose
adjournment
among
things,
of obtain-
for the
“an
other
ing
counsel”
(CPL
180.10
[3]
[a])
and the
appointment
financially
the
unable to obtain
court if “he is
the
counsel
same”
(CPL
180.10
[3]
[c]).6
The court must
also
give
the de-
rights and
opportunity
of those
himself
to avail
fendant
necessary
ef-
as is
affirmative action
take such
“must itself
[4]).
(CPL
prophylactic
is a
This statute
180.10
fectuate them”
protect
purpose
Sixth Amend-
a defendant’s
is to
one whose
rights
a defendant
in
situation where
because, even
ment
permit
go
counsel, “the court must
forward without
chooses
made such decision with
if it
that he
him to do so
is satisfied
significance
knowledge
and, in a situation where
thereof’
proceed until defendant
not to
satisfied,
decide
it is not so
[5]).
(CPL
appointed
180.10
obtains or is
(see
every
Giving plaintiffs
inference
favorable
the benefit
[1994]),
complaint nev-
83,
Martinez,
87-88
Leon
deprivation of
for the
a cause of action
ertheless fails to state
arraignment.
there is
reason is that
One
to counsel
allegation
at one’s first court
failure to have counsel
no
that the
proceedings.
appearance
on the criminal
an adverse effect
had
rejected
the absence
the assertion “that
Circuit has
The Second
per
arraignment
upon
inflexible,
se violation
is an
of counsel
ar-
at a defendant’s
procedure to be followed
180.10
5. CPL
addresses
rights
regard.
in that
felony complaint and the defendant’s
raignment on a
require-
similar
Procedural Law contain
provisions of the Criminal
Other
a defendant
instance,
the scenario where
210.15 addresses
ments. For
CPL
scenario,
court’s duties
indictment; however,
in the latter
arraigned
an
on
appearing
rights when
of his
apprise a defendant
responsibilities
arraignments
170.10 addresses
essentially the same. CPL
counsel are
without
information, prosecutor’s infor-
information, simplified traffic
relative to an
procedures the court
forth the
complaint, and sets
mation or misdemeanor
assignment
right to counsel
apprising
defendant of his
must follow
and/or
of counsel.
favorably cited to
has
United States
Indeed,
Supreme
Court
6.
the 43 states
York is one of
that New
support
of its observation
180.10
CPL
‘before,
just after
at or
appointing counsel
step toward
that “take the first
”
n 14
County,
204 and
Gillespie
(Rothgery v
appearance’
initial
(United
Fay,
the Sixth Amendment”
ex rel.
States
Caccio v
1965]).
[2d
F2d
Cir
Where a criminal
is ar
defendant
raigned
presence
pleads
of counsel and
guilty—or
plea
guilty
the court enters a not
on his behalf—
there is no Sixth Amendment violation
United
ex rel.
States
*21
[2d
Combs v
F2d
Denno,
809,
357
812
Cir 1966]; United States
Hussey Fay,
[SD
Supp
ex rel.
220 F
562
1963];
NY
see also
Holland v
2005 WL
Allard,
2786909, 2005 US
Dist LEXIS
2005]).
[ED
explanation
why
simple:
NY
The
as to
this is
so
law,
“Under New York
a
.
defendant suffers no . .
prejudice [by
imposition
guilty plea
the
not
of a
on
arraignment
counsel],
without benefit of
for what
upon arraignment
ever
could
counsel
have done
on
behalf,
defendant’s
counsel were free to do thereaf
nothing
any
ter. There is
in New York law which in
way prevents
taking advantage
counsel’s later
of
every opportunity
originally
or defense which was
upon
arraignment”
available to a defendant
his initial
(Hu
ssey,
Supp
citing People
220 F
at
1963]).
[2d Dept
Combs, AD2d
pleaded,
plaintiffs arraigned
As
none of the 10
without counsel
guilty
compliance
pleas and,
indeed,
entered
the
shortly
180.10,
strictures of CPL
arraignment.
all met with counsel
the
after
there
Nor is
claim that the absence of counsel
prejudiced
(cf.
plaintiffs
Maryland,
these
White
While present ment, frustration the deficiencies with indigent system Legal defense understandable. services routinely indigent appointed underfunded, and have been are all often and confronted with exces- too overworked caseloads, the amount of time counsel sive which affects given Many, plaintiffs’ griev- spend if not all, client. acknowledged Kaye Report, ances have been Commission Legisla- implicitly it which is addressed—as should be—to the weighing proper proposals ture, forum enhance is, at defense services in New York. This policy questions attempt properly heart, an to convert what are Legislature into claims for courts. for the constitutional Accordingly, Appellate I affirm the order of the Divi- would sion. Judge Judges Ciparick, Jones concur with Chief Graffeo sepa- Judge Pigott affirm in a dissents and votes to
Lippman; Judges opinion Read and Smith concur. rate in which modified, Order etc.