What is "constructive denial"?
Answer
“Constructive denial” is a phrase often used in cases, but it is not defined in major dictionaries. The phrase is most often applied in ineffective assistance of counsel cases and freedom of information law litigation (FOIL) when an untimely response within a specified time periods is considered a denial (21 NYCRR 1401.5 (e).
"Constructive denial of counsel occurs when counsel has been provided and is present at critical stages, but he or she ceases to function as the attorney guaranteed by the Sixth Amendment. This may be either because the state directly interferes with counsel’s ability to represent the defendant or because the circumstances otherwise render the risk of defective performance so high that prejudice must be presumed. "4 New York Criminal Practice § 43.03