People v. Andrews
| Decision Date | 12 June 2014 |
| Citation | 993 N.Y.S.2d 236,17 N.E.3d 491,2014 N.Y. Slip Op. 04233,23 N.Y.3d 605 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Churchill ANDREWS, Appellant. The People of the State of New York, Respondent, v. Kevin Kruger, Appellant. The People of the State of New York, Appellant, v. Vinod Patel, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Lynn W.L. Fahey, Appellate Advocates, New York City (Lisa Napoli of counsel), for appellant in the first above-entitled action.
Kenneth B. Thompson, District Attorney, Brooklyn (Joyce Slevin, Leonard Joblove and Solomon Neubort of counsel), for respondent in the first above-entitled action.
Ostrer & Hoovler, P.C., Chester (Benjamin Ostrer and David A. Brodsky of counsel), for appellant in the second above-entitled action.
Francis D. Phillips, II, District Attorney, Middletown (Andrew R. Kass of counsel), for respondent in the second above-entitled action.
Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Johnnette Traill and John F. McGoldrick of counsel), for appellant in the third above-entitled action.
Lynn W.L. Fahey, Appellate Advocates, New York City, for respondent in the third above-entitled action.
In these three cases, we consider whether our decision in People v. Syville, 15 N.Y.3d 391, 912 N.Y.S.2d 477, 938 N.E.2d 910 (2010) entitled defendants to a common-law writ of error coram nobis in order to pursue untimely appeals.
The appellate process is a statutory creation in New York (see e.g. People v. Romero, 7 N.Y.3d 633, 636–637, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; People v. West, 100 N.Y.2d 23, 26, 759 N.Y.S.2d 437, 789 N.E.2d 615 [2003], cert. denied 540 U.S. 1019, 124 S.Ct. 561, 157 L.Ed.2d 433 [2003] ). The review of a criminal conviction is authorized by article 450 of the Criminal Procedure Law. There is a right to a first-tier, direct appeal to an intermediate appellate court (see CPL 450.10[1] ), whereas secondary review is more commonly discretionary (compare CPL 450.90with CPL 450.70and CPL 450.80 ). An appeal is initiated by filing a notice of appeal, usually within 30 days after sentence is imposed (see CPL 460.10[1][a] ).
Although there is no constitutional entitlement to an appeal (see e.g. Halbert v. Michigan, 545 U.S. 605, 610, 125 S.Ct. 2582, 162 L.Ed.2d 552 [2005] ; McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867 [1894] ), it has long been recognized that a statutory right to a direct appeal triggers a guarantee of effective legal assistance (see Evitts v. Lucey, 469 U.S. 387, 393–394, 105 S.Ct. 830, 83 L.Ed.2d 821 [1985] ; Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 9 L.Ed.2d 811 [1963] ). A lawyer who disregards a timely request to file a notice of appeal “acts in a manner that is professionally unreasonable” (Roe v. Flores–Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 [2000] ). A corresponding loss of appellate rights results in a deprivation of due process of law (see Evitts, 469 U.S. at 396–397, 105 S.Ct. 830 ; Roe, 528 U.S. at 477, 120 S.Ct. 1029 ).
The procedure for raising such a claim has evolved over time. Historically, the ancient writ of “error coram nobis” was used by courts to correct errors for which no other avenue of judicial relief was apparent (see e.g. People v. Hairston, 10 N.Y.2d 92, 93–94, 217 N.Y.S.2d 77, 176 N.E.2d 90 [1961] ; People v. Bachert, 69 N.Y.2d 593, 598–600, 516 N.Y.S.2d 623, 509 N.E.2d 318 [1987] ). After the writ was resurrected in New York (see Matter of Lyons v. Goldstein, 290 N.Y. 19, 25, 47 N.E.2d 425 [1943] ), it was enlarged to include claims premised on the loss of the right to an appeal caused by deficient legal performance (see e.g. People v. Montgomery, 24 N.Y.2d 130, 133–134, 299 N.Y.S.2d 156, 247 N.E.2d 130 [1969] ). This so-called “Montgomery claim,” if meritorious, restarted the 30–day period to file a notice of appeal (see id. ).
Most of the common-law, coram nobis types of relief were abrogated when the Criminal Procedure Law was enacted (see People v. Corso, 40 N.Y.2d 578, 580, 388 N.Y.S.2d 886, 357 N.E.2d 357 [1976], citing CPL 440.10 ). A modified form of Montgomery relief was codified in CPL 460.30 to permit a defendant to seek permission to file a late notice of direct appeal in certain circumstances. The motion “must be made with due diligence after the time for the taking of such appeal has expired, and in any case not more than one year thereafter” (CPL 460.30[1] ). The one-year grace period is strictly enforced (see People v. Corso, 40 N.Y.2d at 581, 388 N.Y.S.2d 886, 357 N.E.2d 357 ) “since the time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them” (People v. Thomas, 47 N.Y.2d 37, 43, 416 N.Y.S.2d 573, 389 N.E.2d 1094 [1979] ). But the enactment of the Criminal Procedure Law “did not expressly abolish the common-law writ of coram nobis or necessarily embrace all of its prior or unanticipated functions” (People v. Bachert, 69 N.Y.2d at 599, 516 N.Y.S.2d 623, 509 N.E.2d 318 ). As a result, we have authorized a limited exception to the one-year rule if diligent and good faith efforts to comply with the requirement were deliberately thwarted by the People (see People v. Johnson, 69 N.Y.2d 339, 341–342, 514 N.Y.S.2d 324, 506 N.E.2d 1177 [1987] ; People v. Thomas, 47 N.Y.2d at 43, 416 N.Y.S.2d 573, 389 N.E.2d 1094 ).
In People v. Syville, 15 N.Y.3d 391, 912 N.Y.S.2d 477, 938 N.E.2d 910 (2010), we considered yet another situation—whether an exception was warranted for a defendant who does not invoke CPL 460.30 within the one-year time frame because defense counsel inexcusably failed to comply with a timely request to file a notice of appeal. We acknowledged that coram nobis was significantly restricted by the adoption of the Criminal Procedure Law, but that the ancient writ “continues to be available to alleviate a constitutional wrong when a defendant has no other procedural recourse” (id. at 400, 912 N.Y.S.2d 477, 938 N.E.2d 910 ). Consistent with the demands of due process, Syville recognized that a criminal defendant must be allowed to assert that a right to appeal was extinguished “due solely to the unconstitutionally deficient performance of counsel in failing to file a timely notice of appeal” (id. at 398, 912 N.Y.S.2d 477, 938 N.E.2d 910 ). Consequently, we concluded that “the time limit imposed in CPL 460.30 should not categorically bar an appellate court from considering [an] application to pursue an untimely appeal” (id. at 399–400, 912 N.Y.S.2d 477, 938 N.E.2d 910 ) in a particular type of “rare case” (id. at 400 n. 2, 912 N.Y.S.2d 477, 938 N.E.2d 910 ) whore:
“an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant alleges that the omission could not reasonably have been discovered within the one-year period” (id. at 399, 912 N.Y.S.2d 477, 938 N.E.2d 910 ).
When this occurs, the proper procedure is a coram nobis application to the Appellate Division (see id. at 400–401, 912 N.Y.S.2d 477, 938 N.E.2d 910 ). Nevertheless, “in most cases strict enforcement of the CPL 460.30 time limit is constitutionally permissible because attorneys usually accede to their clients' requests to file notices of appeal and, when they fail to do so, most defendants are in a position to discover the omission within the statutory grace period” (id. at 400 n. 2, 912 N.Y.S.2d 477, 938 N.E.2d 910 ).
With this background in mind, we now turn to the facts of the three cases before us.
People v. Vinod Patel:
When defendant Vinod Patel pleaded guilty to possessing child pornography, he waived his right to appeal orally and in writing. Approximately 10 months after sentence was imposed—and within the one-year grace period provided by CPL 460.30 —Patel sought permission to file a late notice of appeal. He asserted that his attorney failed to advise him about his right to pursue a direct appeal, and claimed that he had requested that his lawyer file a notice of appeal. The Appellate Division rejected Patel's application (see 2008 N.Y. Slip Op. 67328[U] [2d Dept.2008], lv. dismissed 10 N.Y.3d 962, 863 N.Y.S.2d 146, 893 N.E.2d 452 [2008] ).
More than three years later, after we decided Syville, Patel applied for coram nobis relief in the Appellate Division, arguing that his attorney had been ineffective for failing to file a notice of direct appeal following the plea bargain conviction. The Second Department granted Patel's motion and reinstated his direct appeal (97 A.D.3d 701, 947 N.Y.S.2d 901 [2d Dept 2012] ). A Judge of this Court granted the People leave to appeal (20 N.Y.3d 934, 957 N.Y.S.2d 694, 981 N.E.2d 291 [2012] ).
People v. Churchill Andrews:
Defendant Churchill Andrews pleaded guilty to selling narcotics and executed a written waiver of his right to appeal in conjunction with a drug-treatment agreement. Following a series of adjournments, along with an arrest on new charges and failure to complete the treatment program, Andrews eventually accepted a sentence of time served. In accordance with that disposition, the court noted that Andrews had “previously waive[d] his right to appeal” and he was released from custody later that day. Andrews did not file a notice of appeal.
Andrews subsequently filed a CPL article 440 motion to vacate the judgment. It was denied by Supreme Court (2011 N.Y. Slip Op. 31216[U] [2011] ) and the Appellate Division granted Andrews permission to appeal the order. Before the Appellate Division decided the case, Andrews moved for coram nobis relief under Syville, claiming that his lawyer had been ineffective for not filing a notice of direct appeal. At Andrews' urging, the court stayed its resolution of the CPL 440 proceeding pending the outcome of the coram nobis motion. The court ultimately rejected both of Andrews' applications (108 A.D.3d 727, 970 N.Y.S.2d 226 [2d Dept.2013] ; 108 A.D.3d 729, 968 N.Y.S.2d 883 [2d Dept.2013] ). A Judge of this Court granted Andrews...
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