People v. Arjune

• Citation: 67 N.Y.S.3d 526,89 N.E.3d 1207,30 N.Y.3d 347
• Parties: The PEOPLE of the State of New York, Respondent, v. Mario ARJUNE, Appellant.
• Decision Date: 20 November 2017
• Court: New York Court of Appeals

30 N.Y.3d 347

89 N.E.3d 1207

67 N.Y.S.3d 526

The PEOPLE of the State of New York, Respondent,

v.Mario ARJUNE, Appellant.

Court of Appeals of New York.

Nov. 20, 2017.

Lynn W.L. Fahey, Appellate Advocates, New York City (Jenin Younes of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (William H. Branigan, John M. Castellano and Joseph N. Ferdenzi of counsel), for respondent.

Sidley Austin LLP, New York City (Eamon P. Joyce, Ariel Atlas and Zachary Payne of counsel), Richard D. Willstatter, Amicus Curiae Committee National Association of Criminal Defense Lawyers and Amicus Curiae Committee New York State Association of Criminal Defense Lawyers, White Plains, and Robert S. Dean, Amicus Curiae Committee Chief Defenders Association of New York, New York City, for National Association of Criminal Defense Lawyers and others, amici curiae.

OPINION OF THE COURT

STEIN, J.

In People v. Syville, 15 N.Y.3d 391, 912 N.Y.S.2d 477, 938 N.E.2d 910 (2010), we held that, in rare circumstances, a defendant may seek coram nobis relief despite failing to move for an extension of time to file a notice of appeal within the one-year grace period provided by CPL 460.30. Specifically, we concluded that coram nobis may be available for a defendant who demonstrated that he or she timely requested that trial counsel file a notice of appeal, the attorney failed to comply, and the omission could not reasonably have been discovered within the one-year time limit (see id. at 400–401, 912 N.Y.S.2d 477, 938 N.E.2d 910 ). Defendant now asks us to expand Syville to situations in which retained trial counsel filed a timely notice of appeal but allegedly failed to advise the defendant of his or her right to poor person relief, or to take any action when served with a motion to dismiss the appeal years after the notice of appeal was filed. Because defendant has not met his burden of proving that counsel was ineffective, we decline to expand Syville under the circumstances presented here.

I.

Defendant, an English-speaking immigrant from Suriname, asserts that he is minimally literate and has cognitive limitations, which admittedly did not prevent him from maintaining employment in construction, managing independent living skills, taking his elderly mother to doctor appointments and ensuring that she took her medication, and helping his girlfriend's teenage child complete her homework. Defendant immigrated to the United States in 2006. In 2008, he was charged with attempted murder in the second degree, assault in the first degree, tampering with physical evidence, and possession of a weapon in the fourth degree. The charges arose out of an incident in which defendant used a boxcutter to stab another man in the chest, stomach and leg, and then hid the boxcutter—which was covered in blood—in a ceiling tile in the bathroom of the restaurant where the stabbing took place. Defendant retained counsel, who asserted a justification defense at the ensuing jury trial. Counsel was able to obtain defendant's acquittal on the attempted murder and first-degree assault charges. Defendant was convicted, however, of tampering with physical evidence and criminal possession of a weapon in the fourth degree. He was sentenced to an aggregate term of 1 to 3 years in prison.

At sentencing, the court clerk stated, "[l]et the record reflect the defendant is being handed a notice of appeal." The People have provided us with the standard "Notice of Defendant of His Right to Appeal" that is handed to all Queens County defendants.¹ Counsel filed a notice of appeal on defendant's behalf the day after sentencing.

Defendant was released from prison in March 2010, four months after being sentenced. He did not retain an attorney, move for poor person relief or attempt to obtain assistance in perfecting the appeal. In October 2013, approximately four years after the notice of appeal was filed, the People moved in the Appellate Division to dismiss the appeal as abandoned. As required by CPL 470.60, the People sent a copy of the motion to dismiss both to defendant at his last known residence and to counsel. Neither defendant nor counsel responded, and the Appellate Division dismissed the appeal in December 2013.

One year later, in December 2014, defendant was remanded to the custody of Immigration and Customs Enforcement for deportation and was released on bond. Defendant's immigration attorney referred him to an appellate indigent defense provider, who moved to reinstate defendant's appeal in April 2015. Although the People filed a response taking no position on the motion, the Appellate Division denied it.² In October 2015, nearly six years after the notice of appeal was filed, defendant moved for a writ of error coram nobis, claiming that he was denied the effective assistance of counsel in perfecting his appeal.

In connection with his coram nobis application, defendant submitted an affidavit in which he stated, without proof, that counsel did not speak with him during or after his trial about an appeal, about the fact that his conviction could subject him to deportation, or about poor person relief. He averred that he did not know that a notice of appeal was filed and that he would have pursued the appeal if he knew about the deportation consequences of his conviction and his right to an attorney.³ Trial counsel also submitted an affirmation in which he stated that he was retained to represent defendant at trial and filed a notice of appeal on defendant's behalf but, after he did so, he did not remember speaking to defendant about how to perfect the appeal. Counsel indicated that he believed his representation, as retained trial counsel, ended after the filing of the notice of appeal because "[i]t was understood that [he] was trial and not appellate counsel." Counsel also stated that he had no recollection of receiving the People's motion to dismiss the appeal.

The Appellate Division denied the coram nobis motion, without opinion ( 138 A.D.3d 877, 29 N.Y.S.3d 475 [2d Dept.2016] ), and a Judge of this Court granted defendant leave to appeal ( 27 N.Y.3d 1148, 39 N.Y.S.3d 383, 62 N.E.3d 123 [2016] ).

II.

Despite trial counsel's having secured an acquittal on the charges of attempted murder and first-degree assault, as well as a sentence that resulted in defendant being released from prison four months after his trial ended, defendant now claims that counsel was ineffective. Defendant argues that, due to his purported cognitive limitations, he was ill-equipped to obtain poor person relief in connection with the process of appealing his conviction, to oppose the dismissal of his appeal or to perfect it without any guidance from an attorney. Defendant and Judge Rivera, in dissent, cite the rules of all four Appellate Division Departments, which were in effect at the time of his conviction, requiring trial counsel to inform his or her client, in writing, of the right to appeal and provide basic information necessary to pursue the appeal, including the right to seek poor person relief and how to do so if the client is indigent (see 22 NYCRR 606.5 [b]; 671.3[a]; 821.2[a]; former 1022.11[a] ). Defendant and Judge Rivera, in dissent, maintain that the existence of such directives—as well as bar association standards mandating that counsel assist in procuring poor person relief and take steps to ensure that an appeal is not unwittingly forfeited—establishes defendant's entitlement to a writ of error coram nobis based upon his unsupported claims that counsel failed to assist him in obtaining poor person relief or to respond to the People's motion to dismiss four years after the notice of appeal was filed. This argument is undermined by this Court's holdings, in two cases, that defendants are not "constitutionally entitled to appointment of counsel to assist in preparing a poor person application" ( People v. Perez, 23 N.Y.3d 89, 99, 989 N.Y.S.2d 418, 12 N.E.3d 416 [2014] ; see People v. West, 100 N.Y.2d 23, 28, 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] ). That is, we expressly rejected the argument that "an application for poor person relief is a critical stage of the proceeding to which [a defendant's] Sixth Amendment and due process rights to counsel attach" ( West, 100 N.Y.2d at 28, 759 N.Y.S.2d 437, 789 N.E.2d 615 ). Perez and West involved review of Appellate Division dismissals of appeals for failure to perfect. We explained that, while our "state's processes must provide the criminal appellant with the minimal safeguards necessary to make an adequate and effective appeal" ( West, 100 N.Y.2d at 28, 759 N.Y.S.2d 437, 789 N.E.2d 615 ), "it is not unconstitutional to require a defendant to take some minimal initiative to assure himself adequate representation on appeal" ( Perez, 23 N.Y.3d at 100, 989 N.Y.S.2d 418, 12 N.E.3d 416 ).⁴ Notably, in both West and Perez, the Court concluded that written notices similar to the one provided to defendant at sentencing here "[c]learly ... informed [the defendants] of [their] right to appeal and more specifically, how to apply for poor person relief," and thus "belied" any claims that delays in perfecting their appeal should not be counted against them ( West, 100 N.Y.2d at 27, 759 N.Y.S.2d 437, 789 N.E.2d 615 ; see Perez, 23 N.Y.3d at 99, 989 N.Y.S.2d 418, 12 N.E.3d 416 ).

Given this legal backdrop—i.e., the Court's holdings in West and Perez that a defendant is not constitutionally entitled to the assistance of counsel in seeking poor person relief as long as he or she is given written notice that is similar to the one defendant received here—defendant has a heavy burden to demonstrate entitlement to a writ of error coram nobis premised on ineffective assistance of counsel for failing to assist in procuring poor person relief. Although the dissenters fail to recognize the distinction, we emphasize that defendant does not challenge the dismissal of his appeal by the Appellate...