AD3 order dated February 14, 2011, denying motion for a writ of error coram nobis. Lippman, Ch. J., granted leave November 28, 2011.

ISSUES PRESENTED: Ineffective assistance of appellate counsel: At trial, the prosecutor accused the defendant and his two trial attorneys of conspiring with a third party to falsely shift the blame to that third party. Whether there was a potential conflict between defendant and his trial lawyers that was not raised by his trial or appellate counsel .

Issue before the Court: Whether appellate counsel was ineffective for failing to argue on appeal that the defendant's trial lawyer was ineffective for failing to object to portions of the prosecution's cross-examination and summaiton.

Held: Appellate counsel was not ineffective.  The prosecutor's cross-examination of the defendant was not overtly prejudicial; moreover, while the DA's summation was objectionable, it was not so bad that counsel's failure to object violated the Sixth Amendment.

CAL observes:  This is another case that shows what kind of "train wreck" eventually ensues when 440 hearing courts take the easy (and glib) way out and deny the 440 because, assertedly, the 440 issue could be raised on direct appeal (and then the Appellate Division denies permission to appeal the 440 denial) --- all of which happened here.  Defendant's only recourse to federalize his underlying fair-trial claims was to go after the appellate lawyer, via writ of error coram nobis, for failure to argue the trial lawyer ineffective for failing to object during trial.  The reality is that such trial-lawyer ineffectiveness is rarely amenable to being raised on direct appeal --- the 440 court's ruling notwithstanidng --- as the appeal gives no opportunity to explore trial counsel's reasons for not objecting.  Were the 440 statute to be amended --- as has been constantly proposed --- so that trial-laywer ineffectiveness claims could always be raised via 440, even if some of the salient facts are in the record, this kind of mess could be avoided.