People v. Ali

• Decision Date: 06 January 1971
• Citation: 35 A.D.2d 435,317 N.Y.S.2d 377
• Parties: The PEOPLE of the State of New York, Respondent, v. Bernard ALI, Appellant. The PEOPLE of the State of New York, Respondent, v. David SHAW, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 377

317 N.Y.S.2d 377

35 A.D.2d 435

The PEOPLE of the State of New York, Respondent, v. Bernard ALI, Appellant.

The PEOPLE of the State of New York, Respondent, v. David SHAW, Appellant.

Supreme Court, Appellate Division, Third Department.

Jan. 6, 1971.

[35 A.D.2d 436] Howard A. Levine, Dist. Atty., Schenectady County (G. Douglas Griset, Schenectady, of counsel), for respondent in the first above entitled action.

Robert W. Zeuner, Schenectady, for appellant in the first above entitled action.

Arnold W. Proskin, Dist. Atty., Albany County (James F. Downs, Albany, of counsel), for respondent in the second above entitled action.

Andrew M. Pinckney, Public Defender, Albany County (F. Stanton Ackerman, Albany, of counsel), for appellant in the second above entitled action.

Before HERLIHY, P.J., and REYNOLDS, STALEY, COOKE and SWEENEY, JJ.

THE ALI CASE

PER CURIAM.

The defendant appeals from an order of the County Court of Schenectady County, which denied without a hearing a Coram nobis application to vacate a judgment of conviction rendered upon a plea of guilty. In his application defendant contended that he had been unlawfully deprived of his right to appeal from the judgment by reason of his assigned counsel's failure to advise him of such right. In rejecting this contention, the County Court found that because of previous convictions, defendant was aware of and could have protected his rights by filing a notice of appeal had he so desired. On appeal, defendant argues that a defendant's awareness of the right of appeal does not lessen counsel's duty to advise a defendant of that right, or the duty to assist him in taking appeal upon request. Defendant also contends that he is entitled to a hearing to determine whether his assigned counsel did in fact give him the requisite advice.

In May 1969 defendant pleaded guilty to feloniously selling a narcotic drug, a felony, and unlawful possession of a hypodermic needle, a misdemeanor. Some weeks later, he was sentenced on the felony count to a term of seven to ten years. Shortly thereafter, he applied to the County Court by letter and affidavit in which he alleged that neither before nor after sentence was he advised of his right to appeal. In opposition the People submitted (1) an affidavit in which the attorney who represented defendant at the time of his plea and sentence averred that he had advised defendant of his right to appeal; (2) a letter from the defendant in which he admitted that he knew generally about appeals, but asserted that he was unaware that an appeal could be taken after a plea of guilty; and (3) upon appeal to this court there was submitted by the People a form signed by the defendant at the time of sentencing which bears the notation 'NOTE: Reminder to Defendant or Attorney: Right to file Notice of Appeal'.

Resolving the issue concerning defendant's knowledge of the right to appeal against defendant, the County Court determined that defendant's failure to appeal was not attributable to his attorney's neglect and, accordingly, dismissed the petition without a hearing. On this appeal the People argue that such dismissal was proper, not merely because defendant's allegations were overcome by the documentary evidence referred to, but on the further ground that defendant's application fails to allege that were it not for counsel's neglect, defendant would have in fact appealed from the judgment.

We hold that, although it was error to decide without a hearing that defendant was advised by counsel of his right to appeal, a hearing was unnecessary here because defendant failed to allege that he in fact wished to appeal and would have taken a timely appeal had he been properly informed of his rights. (People v. Saunders, 35 A.D.2d 591, 313 N.Y.S.2d 564; People v. Greene, 35 A.D.2d 587, 313 N.Y.S.2d 551.) We do not construe People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130, to require reinstatement of every defendant's right to appeal upon the bare allegation that defendant was not advised by counsel, or the court, of his right to appeal. It must appear that during the time allowed for taking an appeal defendant disputed the validity of the judgment of conviction but was nevertheless prevented from prosecuting an appeal by reason of ignorance or improper advice as to his rights. (People v. Carlos, 26 N.Y.2d 797, 309 N.Y.S.2d 221, 257 N.E.2d 664; People v. Lucci, 27 N.Y.2d 550, 313 N.Y.S.2d 121, 261 N.E.2d 263; People v. Callaway, 24 N.Y.2d 127, 299 N.Y.S.2d 154, 247 N.E.2d 128.) This is particularly so in cases of a guilty plea, when it is more reasonable to assume, absent allegations to the contrary, that defendant has neither reason nor desire to prosecute an appeal. Relief is not available when a defendant, months or years later, decides it would then be desirable to prosecute an appeal. (People v. Lampkins, 21 N.Y.2d 138, 286 N.Y.S.2d 844, 233 N.E.2d 849; 27 N.Y.2d 848, 316 N.Y.S.2d 641, 265 N.E.2d 463 (November 12, 1970).) Accordingly the order should be affirmed, without prejudice, however, to a further application which is prima facie sufficient either on its face or in conjunction with such documentary material as may be available to the Trial Justice.

Because of the delay which has occurred in this case, viz., the lapse of some five months between the date application was filed and the decision of the county court, and because of delay and procedural confusion we have observed in similar cases, in part attributable to the growing number of these applications, we outline for the guidance of counsel, petitioners and criminal courts the procedural route to be followed in this area.

The venue for applications is the original trial court (People v. Wurzler, 300 N.Y. 344, 345, 90 N.E.2d 886, 887; People v. Gersewitz, 294 N.Y. 163, 168, 61 N.E.2d 427, 429, cert. den. 326 U.S. 687, 66 S.Ct. 89, 90 L.Ed. 404; see generally Matter of Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425; Frank on Coram Nobis, § 4.01(a); Proposed Crim. Pro. Law, § 440.10, subd. 1, pars. b, c, e, f, h). To avoid unnecessary delay the petitioner should address his original moving papers directly to that court. The validity of applications is predicated on substance rather than form and if it appears that an application or communication has merit the trial court will entertain it as a sufficient application; however, unverified applications should not be considered as adequate to require a hearing and the trial court should promptly so advise applicants. (See People v. Shaw, Infra.)

Whether the initial application is made by an attorney or by the defendant, it would be more expeditious if the movant would forward a copy to the appropriate District Attorney's office. When the court determines that an application is sufficient upon its face it should so notify the District Attorney. However, if the court determines that the application is insufficient then the relief requested should be denied without a hearing, in which case prior notice to the District Attorney is unnecessary (People ex rel. Williams v. LaVallee, 19 N.Y.2d 238, 279 N.Y.S.2d 1, 225 N.E.2d 735).

Upon being notified by the trial court that the application is sufficient on its face, the District Attorney should forthwith submit any available documentary evidence and/or affidavits which would refute the allegations contained in the application either conclusively or at least so as to narrow the issues (People v. Richetti, 302 N.Y. 290, 296, 97 N.E.2d 908, 911; People v. Langan, 303 N.Y. 474, 480, 104 N.E.2d 861, 864; People v. Dishaw, 28 A.D.2d 606, 607, 280 N.Y.S.2d 37, 38--39; People v. Shaver, 26 A.D.2d 735, 272 N.Y.S.2d 175). If the documentary evidence conclusively refutes the applicant's position, the court should summarily dismiss the application upon the merits Without a hearing (People v. Savage, 279 App.Div. 1041, 112 N.Y.S.2d 523; Matter of...