Does the failure to apply the amendment retroactively deprive a defendant of his fundamental rights under the Sixth and Fourteenth amendments where he claims he was denied effective assistance of counsel?

QUESTION PRESENTED On October 25, 2021, N.Y. Crim. Proc. § 440.10(2)(b) and (c) were amended to remove the procedural bar precluding a defendant from raising a collateral claim based on the ineffective assistance of counsel if he did not raise it on his direct appeal, to echo the federal policy set forth in Massaro v. United States, 538 U.S. 500, 504 (2008), and that existing in a majority of other states. See N.Y. A.B. 2653, Comm. Report (Jan. 21, 2021). As New York law already favored raising “mixed claims” of ineffective assistance on collateral review, the Legislature reasoned that applying the prior procedural bar created a risk that defendants would be forced to raise the issue in an inappropriate forum when the trial record was incomplete or inadequate to argue the claim. Id. Both houses of the state Legislature unanimously passed the amendment, which went into effect immediately upon enactment. However, New York courts declined to apply the amendment retroactively. Thus, defendants who recognized that: (1) their ineffective assistance of counsel claims necessitated an expansion of the trial record to fully articulate the claim, and (2) the futility of raising such claims on direct appeal, only to be told that the appropriate mechanism for such review was through N.Y. Crim. Proc. § 440.10, are now in legal limbo with no due process. This case presents a critical question for criminal appellate practice in New York: Does the failure to apply the amendment retroactively deprive a defendant of his fundamental rights under the Sixth and Fourteenth amendments where he claims he was denied effective assistance of counsel?