On Aug. 13, 2009, the Law Journal reported in its “News in Brief” that the Court of Appeals was soliciting amicus curiae briefs in a criminal case in which it granted leave to appeal that involves the effectiveness of appellate counsel representation. Criminal defendants in New York have both a state (N.Y. State Constitution, art. 1, §6) and a federal (Sixth Amendment) constitutional right to the assistance of counsel at both the trial and appellate level that is “ violated if a defendant’s counsel fails to meet a minimum standard of effectiveness, and defendant suffers prejudice from that failure.”1
In Strickland v. Washington,2 the U.S. Supreme Court “adopted a two-pronged test for ineffective assistance, holding that a defendant must show, first, ‘that counsel’s representation fell below an objective standard of reasonableness’ (466 U.S. at 688) and, secondly, ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ (id. at 694).”3 Under Strickland, “a reasonable probability is a probability sufficient to undermine confidence in the outcome.”4
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