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Several months after the New York Court of Appeals announced its willingness to accept briefs filed on CD-ROM, the panel has received its first digital filing. Last week, in the case of People v. Stokes, the New York State Defenders Association made history when it became the first litigant to file electronically. The Albany, N.Y.-based organization figured the Stokes case was perfect for such a medium: an important criminal appeal raising the issue of ineffective assistance in the context of the low rates paid assigned counsel under Article 18-B of the county law. The record is huge, with a 600-page appendix, and the citation of precedents is substantial. With hypertext links, the judges can simply click on a referenced case and immediately read the opinion or be pointed to a statute and promptly jump to the text. And, as staff attorney Alfred O’Connor observed, there is nothing to lose by making your argument more accessible to the court. “Anything that makes it easier for the court to review the merits of your case, particularly when you have a strong one, is beneficial,” O’Connor said. “That is really the gist of successful advocacy — to make it easier for the court to come to the conclusion that you’d like them to come to.” In People v. Stokes, there were no briefs to speak of in the Appellate Division — and therein lies part of the claim of ineffective assistance at the Third Department. “It was a particularly appropriate case for us because we are counsel of record,” O’Connor said. “Usually we act in an amicus capacity in the Court of Appeals.” Several federal courts, including the U.S. Court of Appeals for the Second Circuit, have been accepting electronic filings for some time. But New York’s top court just changed its rules to allow such filings at the end of last year. Under the new rule, explained Clerk of the Court Stuart M. Cohen, briefs can be filed digitally upon the consent of the parties or through an order of the Court, either sua sponte or through a motion, pursuant to what is now 22 NYCRR 500.1(b). Here, Chemung County District Attorney John Trice consented. Cohen said a digital filing does not in any way alter the requirement to supply the court with 20 printed versions of the brief and appendix, nor does it alleviate the burden of serving copies on all adversaries and amici. Rather, it adds a new burden: In addition to the traditional paper filings, an attorney filing digitally must provide the Court of Appeals with 10 copies on disk and serve one disk on each party and amicus curiae. But the Defenders Association thinks it is worth the trouble to make its case easier for the court and its judges to digest. The rules (available electronically at www.courts.state.ny.us/ ctapps/500rules.htm) require formatting in HTML 3.0 or PDF, allow embedded graphics as JPEG or GIF files and provide for video or audio links in MPEG or WAV format, respectively. In addition, filers must certify that the data has been scanned for viruses. Charles O’Brien, managing attorney with the New York State Defenders Association, said the process for creating the CD-ROM was fairly simple, but required 20 to 30 hours of effort. O’Brien said converting the brief from a standard word processing program, Word, to PDF format was simple, as was scanning in the record, and after obtaining permission from West Law, downloading relevant authorities. Most time-consuming, he said, was creating the hyperlinks. BACKGROUND ON ‘STOKES’ The Stokes appeal is so new that it has not yet been assigned an indexing number, and opposing briefs are not yet filed. The appeal stems from the case of Roger Stokes, who was an inmate at Southport Correctional Facility when he was accused of spraying a counselor with a mixture of urine and feces. A Chemung County jury convicted Stokes of aggravated harassment of an employee by an inmate (Penal Law Section 240.32). He was sentenced as a persistent felon to a 15-year-to-life prison term. On appeal to the Third Department of the New York Appellate Division, which sits in Albany, Stokes was represented by assigned counsel, a solo practitioner from Binghamton named Bernice R. Dozoretz. Dozoretz filed a no-merit appeal with the Third Department, asserting that there were no non-frivolous issues that could be raised and asking to be relieved of the assignment. On Dec. 16, the Third Department affirmed the conviction and granted Dozoretz’s motion. Court of Appeals Judge George Bundy Smith granted leave on May 11, resulting in the Defenders Association’s electronic filing. In its brief, the Defenders Association argues that there were several non-frivolous issues that should have been raised by Dozoretz, including the fact that Rogers was shackled during trial and the allegation that the court wrongly admitted the inmate’s disciplinary record. O’Connor also noted that Dozoretz apparently has a habit of filing no-merit appeals in assigned cases; according to his brief, since late 1998 Dozoretz has filed 19 consecutive no-merit briefs with the Appellate Division. Yesterday, Dozoretz declined to comment. The Defenders Association contends the ineffective assistance that it alleges in this matter is the systemic reaction of an assigned counsel system in which attorneys for the indigent are underpaid. Assigned counsel have not received a raise in 14 years. They are still compensated at rates set in 1986, long before electronic filings were even contemplated. Cohen said there is no immediate plan to post briefs on the Court’s Web site, located at (www.courts.state.ny.us /ctapps), but did not rule out the possibility that in the future filings might be easily accessible in cyberspace.

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