Court of Appeals for New York, Albany. (Courtesy photo)

Judges on New York's highest court had some strong words for each other in denying a man's bid to have his decades-old conviction reheard over a claim of ineffective state-provided counsel.

Associate Judge Jenny Rivera wrote in a dissenting opinion Thursday that the decision essentially tells attorneys assigned as counsel to low-income defendants that they don't have to act as an advocate for the defendant.

“The majority's acceptance in this case of appellate counsel's failures erodes our constitutional standard for effective assistance, imports a prejudice standard we have long rejected, and sends a message to the profession that there is seemingly little to no value attached to a lawyer's skill in advocacy,” Rivera wrote. “This could not be further from the truth.”

The case was brought by Omar Alvarez, who was convicted by a jury in 1996 of second-degree murder, conspiracy in the first degree, and several other charges. He was sentenced to an aggregate term of 66 years to life in prison, where he's remained since.

Alvarez appealed his conviction and sentence to the Appellate Division, where he was represented by counsel assigned to him. The attorney, R. Franklin Brown, prepared a brief with four arguments to support his case, but the appellate court upheld the verdict and sentence. The case was not appealed to the Court of Appeals.

Two years ago, Alvarez sought to have his case reconsidered by the Appellate Division because, he claimed, Brown's performance more than two decades ago was constitutionally defective. The Appellate Division denied that application, which was appealed to the Court of Appeals.

Associate Judge Leslie Stein wrote in the court's decision Thursday, which four other judges signed on to, that Brown sufficiently prepared arguments against the initial conviction, even if his methods didn't live up to the standards of other lawyers.

“In the instant matter, there is no question that the brief filed by appellate counsel was somewhat terse, could have been better drafted, and is not a model to be emulated,” Stein wrote. “Nevertheless, the brief demonstrated appellate counsel's grasp of the relevant facts and law.”

Brown raised four issues in the brief on the conviction that were reviewed at the appellate court level, but ultimately rejected. Stein wrote that just because Brown wasn't successful in his defense of Alvarez didn't mean his work was constitutionally insufficient. She also said that Alvarez didn't have a strong case for a different outcome should his case be reviewed anyway.

“Moreover, defendant's claim of ineffective assistance of appellate counsel is particularly weak here because he can identify only a single issue that was even potentially meritorious—an excessive sentence claim—that he asserts should have been included in the appellate brief,” Stein wrote.

She also criticized Rivera's dissent for focusing, in part, on the grammatical and structural faults in Brown's brief to the appellate court. Rivera had focused a short section of her dissent on the literary quality of Brown's work, criticizing it for grammar and typographical errors.

“That counsel could not even proofread his brief is further evidence that he failed to meet the minimum threshold for satisfactory appellate work,” Rivera wrote. “For all the majority's efforts to normalize these numerous deficiencies, the majority cannot make a silk purse out of this sow's ear.”

Stein chided Rivera for bringing up Brown's failures in grammar in her dissent.

“That our colleagues quibble over such minuscule issues, largely exalting form over substance, is telling,” Stein wrote.

But Rivera's dissent was also critical of Brown's brief overall, essentially calling it a bad example for law students to follow if they were to read it. She included a link to the brief for readers to review as part of her dissent. She said the brief ignored the factual record of the case and did not include grounded legal arguments to support a defense for Alvarez.

“The brief violates every rule about effective appellate advocacy taught to law students across the country. These rules are well-known and found in numerous academic and practice-oriented texts used in classrooms to assist future generations of lawyers in developing the skills recognized by the profession as essential to effective appellate lawyering,” Rivera continued.

Associate Judge Rowan Wilson wrote in a separate dissenting opinion that Brown was ineffective because he, as Alvarez argued, had not asked the appellate court for a sentence reduction. He also argued that the majority had not considered the full context of the case, including that Alvarez suffers from Hodgkin's Lymphoma and is paraplegic.

“The majority does not mention those facts. It would be worth dissenting if only to acknowledge them, but that is not my point in so doing,” Wilson wrote.

Chief Judge Janet DiFiore and Associate Judges Fahey, Garcia, and Feinman concurred with the court's opinion. Only Rivera and Wilson dissented.

Alvarez was represented by Richard M. Greenberg, an attorney from Manhattan formerly of the Office of the Appellate Defender. Greenberg could not immediately be reached for comment.

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