People v. Robert Kordish (SSM)


Issue before the Court: Is a defendant entitled to the appointment of counsel on a motion to dismiss an appeal?

Held: Relying on Supreme Court caselaw assuring a defendant’s right to counsel on appeal (Douglas v. California), as well as more recent caselaw protecting a defendant’s first-tier appeal (Halbert v. Michigan and Taveras v. Smith), the Court holds that "the Appellate Division erroneously failed to assign counsel to represent defendant before dismissing his first-tier appeal as of right based on his failure to timely perfect it."

CAL Observes: This SSM decision has important ramifications for indigent defendants on appeal and also leaves open some questions. First, the ruling is fantastic, as it recognizes the defendant’s right to counsel in opposing motions to dismiss — an area where heretofore defendants — including non-English speaking, the mentally ill, and those of limited education — were typically left to their own devices when, years after their convictions, their appeals were at risk of being dismissed for lack of timely perfection. These were defendants who had filed notices of appeal but then did not move for IFP relief and the assignment of counsel, or did so incorrectly.  Now, with the benefit of counsel in opposing dismissal, they may be able to move forward on their appeals.

However, Kordish specifically concerned a motion to dismiss on the court’s own motion. Presumably, the ruling applies equally to the more common scenario of dismissal motions brought by the People. Kordish also states that counsel will be appointed upon a showing of indigency — which implicates the threshold issue of a defendant’s access to counsel for the purpose of establishing indigency. The Court of Appeals held in People v. West in 2000 that due process does not require the appointment of counsel for the purpose of applying for IFP relief and the assignment of counsel. Upcoming cases later in the 2013-14 term may provide occasion for the Court to revisit, or at least find exceptions to, West