Must IAC Claims Be Preserved?

In People v Jones, (55 NY2d 771 [1981]), the Court of Appeals held that claims of ineffective assistance of counsel (IAC) may be raised for the first time on appeal. A contrary holding would penalize a defendant who received ineffective assistance for the failure of the deficient counsel to preserve the issue of ineffectiveness. Since few ineffective attorneys are likely to preserve the issue of their ineffectiveness, virtually all IAC claims (including those with merit) would be unpreserved and unreviewable. Subsequently, the Court in People v Angelakos (70 NY2d 670 [1987]), cited Jones in reviewing an unpreserved claim of IAC in an appeal from a guilty plea.

Recently, however, the Appellate Divsion, Fourth Department, has held in a series of cases, such as People v Barra (2007 NY Slip Op 08644 [11/9/07]) and People v Fairman (38 AD3d 1346, lv denied 9 NY3d 865 [2007]), that claims of IAC have not been preserved for review where the defendant did not move to withdraw the plea or admission or to vacate the judgments of conviction based on the alleged denial of effective assistance of counsel. These Fourth Deparment decisions do not cite Jones or Angelakos. One wonders whether the Fourth Department is applying this preservation requirement even where the defendant did not have access to different counsel until one was assigned for the appeal.