State Must Appoint Counsel before Dismissing (as Discretion) First-Tier Appeal under Fugitive Disentitlement Doctrine

Taveras v. Smith, Docket No. 05-5579-pr (2d Cir. Sep. 11, 2006) (Cardamone, Calabresi, Pooler): This decision answers a very narrow question: May the New York State Appellate Division — the state’s first-tier, “as of right” appellate court — exercise its discretion to dismiss, on fugitive disentitlement grounds, the appeal of an apparently indigent defendant without first appointing counsel? The Circuit, by Judge Calabresi, says no, relying on the “rationale” of Douglas v. California, 372 U.S. 353 (1963), that appellate counsel must be appointed for an indigent defendant who seeks a first-tier, as-of-right appellate review that “(1) involves some consideration of the ‘merits’, and (2) involves claims that have not yet ‘been presented by [appellate counsel] and passed upon by an appellate court.'” Op.9. While counsel likely need not be appointed if New York (like Texas) had an automatic dismissal rule based on a defendant’s flight during the appeal, New York’s decision to adopt a discretionary fugitive disentitlement rule required the appointment of counsel before that discretion can be exercised against the indigent defendant.