N.Y. Comp. Codes R. & Regs. tit. 22 § 515.1

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

Section 515.1 - Standards for appellate counsel in capital cases

(1) Appellate qualifications and experience.

(a) Sole appellate counsel. To be eligible to be appointed as sole appellate counsel on direct appeal in a capital case, an attorney must demonstrate that he or she:

(1) has at least five years of criminal trial or criminal appellate or post-conviction experience, or has at least three years of concentrated criminal litigation experience;

(2) is familiar with the practice and procedure of the trial and appellate courts of New York, including the New York Court of Appeals; and

(3) also 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.

(b) Two appellate counsel. To be eligible to be appointed as one of two appellate counsel on direct appeal in a capital case:

(1) one attorney must demonstrate that he or she has the qualifications set forth in subdivision (a) of this section; and

(2) the second attorney must demonstrate that he or she:

(i) has at least three years of criminal litigation or post-conviction experience;

(ii) is familiar with the practice and procedure of the trial and appellate courts of New York, including the New York Court of Appeals; and

(iii) has had primary responsibility for the appeal, in any state or Federal court, of at least three felony convictions, at least one of which was on behalf of the defendant.

(c) Trial counsel. If otherwise qualified under these standards, and with the consent of the client, a defendant's capital trial counsel may seek to be appointed capital appellate counsel on the same defendant's appeal.

(d) 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 by demonstration by the attorney that he or she, by reason of extensive civil litigation and/or appellate experience or other exceptional qualifications, is capable of providing effective representation as appellate 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 requirements that he or she requests be waived, and shall set forth in detail his or her appellate experience or other exceptional qualifications that justify waiver.

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

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

(2) descriptions of any capital or other criminal appellate advocacy or other criminal practice program attended;

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

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

(5) any other material that may be relevant to fully evaluate the applicant's appellate 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 appellate 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 appellate 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 appellate counsel in a capital case, and after consideration of the recommendation 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 appellate 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 appellate counsel in a capital case.

(4) Additions to Court of Appeals roster.

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

(5) Training.

(a) Certification. An attorney shall not be eligible to be appointed as appellate counsel in a capital case unless the Capital Defender Office shall certify that the attorney satisfactorily has completed a capital appellate-advocacy 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, my 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 a capital appeal, 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 § 515.1