On April 12, 2010, by a 2-1 vote the Court of Appeals for the Second Circuit Court in Rosario v Ercole (__F3d_ [2d Cir 4/12/10]) found that counsel provided ineffective assistance under the Strickland standard, but that the New York's holding to the contrary was not unreasonable. Both the majority and dissent discuss issues regarding the application of the New York and federal standards for ineffectiveness of counsel.

The majority held that despite the language in the New York Court of Appeals decision,People v Benevento (91 N.Y.2d 708, 714 [1998]), that “whether defendant would have been acquitted of the charges but for counsel’s errors is
relevant, but not dispositive" under the Baldi standard such a finding is, in fact dispositive under People v Baldi (54 NY2d 137 [1981]), since "it is hard to envision a scenario where an error that meets the prejudice prong of Strickland v Washington (466 U.S. 668, 687 (1984]) would not also affect the fundamental fairness of the proceeding."

The majority's holding makes does not discuss the 2009 holding of the New York Court of Appeals in People v Borrell (12 NY3d 365, 2009 NY Slip Op 03589 [2009]) in which the Court of Appeals held

While it may ultimately be determined that [the issue not raised was meritorious], as he now contends, and that the representation at issue would have been more efficacious had the issue been raised on the appeal, the relevant and, indeed, dispositive threshold issue on this coram nobis application is not whether defendant's representation could have been better but whether it was, on the whole, constitutionally adequate. This less exacting standard was met by counsel on the appeal.

For an excellent analysis of the Rosario decision, please read this posting at the Habeas Corpus Blog.