Appellate Divisions Can Order Hearing To Determine If There Was A Strategic Basis For Failure To Raise Issue

In People v Bachert (69 NY2d 593, 600 [1987]), the Court of Appeals held that a motion for writ of error coram nobis is the means in New York to raise claims of ineffective assistance of appellate counsel  Such claims focus on  appellate counsel's failure to raise significant and obvious issues while pursuing issues that were clearly and significantly weaker. But it is often difficult to establish that there was no possible strategic basis for such omission.

In People v Lassalle (2013 NY Slip Op 00883 [NY 2/12/13]), the Court of Appeals reminded both counsel and the Appellate Divisions that when "a defendant in a coram nobis points to a clear error on the face of the [trial court] record," that was not raised as an issue on appeal "there are avenues to more fully explore potentially meritorious claims (see e.g. People v D'Alessandro, 13 NY3d 216, 220-221 [2009]; People v Bachert, 69 NY2d 593, 600 [1987])." Specifically, in Bachert, the case in  the Court  held that '[t]he Appellate Division even has the flexibility, should the need arise, to refer factual disputes for hearings to the nisi prius court or perhaps to judicial hearing officers." People v Bachert, 69 N.Y.2d 593, 600 (1987).

Thus, in drafting motions for writ of error coram nobis, counsel should expressly ask that the Court refer to the case to a hearing if it is unclear if the failure to raise a meritorious issue was the product of strategy and not simply a mistake.