People v. Bachert

• Decision Date: 04 June 1987
• Citation: 516 N.Y.S.2d 623,69 N.Y.2d 593,509 N.E.2d 318
• Parties: , 509 N.E.2d 318 The PEOPLE of the State of New York, Appellant, v. Rickey L. BACHERT, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 623

516 N.Y.S.2d 623

69 N.Y.2d 593, 509 N.E.2d 318

The PEOPLE of the State of New York, Appellant, v. Rickey L. BACHERT, Respondent.

Court of Appeals of New York.

June 4, 1987.

James T. Hayden, Dist. Atty., for appellant.

William E. Hellerstein, New York City, for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

The parties concede the necessity to find a procedure and a forum in which to address claims of ineffective assistance of counsel allegedly occurring in the intermediate appellate court. We hold that, inasmuch as the Criminal Procedure Law failed to anticipate and to provide for this particular situation, the remedy lies in the intermediate appellate court itself by the invocation and determination there of the traditional writ of error coram nobis.

A synopsis of the procedural context of the case before us begins with the entry of a judgment on October 29, 1982 convicting Rickey Bachert, after jury trial, of the crimes of burglary in the second degree, criminal trespass in the second degree and petit larceny. The conviction was affirmed by the Appellate Division on June 7, 1984 (102 A.D.2d 904, 477 N.Y.S.2d 483), and leave to appeal to this court was denied in October 1984 (63 N.Y.2d 945, 483 N.Y.S.2d 1028, 473 N.E.2d 45).

Bachert subsequently sought to attack his judgment collaterally by bringing a motion to vacate, in the court of conviction, pursuant to CPL 440.10(1)(h). The ground asserted was ineffective assistance of appellate counsel in violation of his Sixth and Fourteenth Amendment rights. Specifically, Bachert emphasized appellate counsel's failure to raise any question as to prosecutorial misconduct or to challenge the verdicts as repugnant. The nisi prius court denied Bachert's motion, holding that it lacked jurisdiction under CPL 440.10 to review a claim of ineffective assistance of appellate counsel. The court reasoned that CPL 440.10 limits collateral attacks on convictions to errors committed at the trial level and since questions regarding appellate counsel can only arise subsequent to the entry of judgment, CPL 440.10 did not confer jurisdiction.

On appeal, the Appellate Division reversed on the law and remitted for further proceedings, in a memorandum decision (121 A.D.2d 802, 504 N.Y.S.2d 252), stating that "[s]ince a defendant is entitled to an appeal as of right [from the judgment of conviction] a broad reading of CPL 440.10 (1)(h) would arguably incorporate an ineffective appellate counsel claim" (id., at 804, 504 N.Y.S.2d 252, citing People v. Ramos, 108 A.D.2d 209, 212, 488 N.Y.S.2d 762). The Appellate Division noted the line of precedents using coram nobis to protect defendants wrongfully deprived of the right to counsel (People v. Lampkins, 21 N.Y.2d 138, 286 N.Y.S.2d 844, 233 N.E.2d 849; People v. Adams, 12 N.Y.2d 417, 240 N.Y.S.2d 155, 190 N.E.2d 529); this court's willingness to expand the applicability of the writ (People v. Hairston, 10 N.Y.2d 92, 217 N.Y.S.2d 77, 176 N.E.2d 90); and the fact that legislative adoption of CPL article 440 was not intended to abolish the common-law writ (People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 905, 431 N.Y.S.2d 518, 409 N.E.2d 990 [Meyer, J., dissenting] ). It concluded that a motion pursuant to CPL 440.10 was the appropriate procedural vehicle to challenge the foundation judgment of conviction based on ineffective appellate counsel grounds. On the People's appeal to this court, we disagree and conclude that CPL 440.10 is not available or appropriate for this purpose.

We reverse and remit to the Appellate Division because a common-law coram nobis proceeding brought in the proper appellate court is the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel until such time as the Legislature enacts a particular and comprehensive remedy. The absence of a codified form of relief and the long-standing recognition of coram nobis flexibility help lead us to the conclusion that challenges to an intermedia appellate court determination, based upon a claim of ineffective assistance of appellate counsel, whether appointed or retained, should be initiated by writ of error coram nobis before that very court.

The right to effective assistance of counsel on appeal is settled under both the Federal and State Constitutions (see, Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 [nominal representation on appeal is like no representation and is constitutionally inadequate]; Anders v. California, 386 U.S. 738, 741, 87 S.Ct. 1396, 1398, 18 L.Ed.2d 493 [an indigent person has the right to appellate representation equal to that of a nonindigent person]; Douglas v. California, 372 U.S. 353, 356-357, 83 S.Ct. 814, 816, 9 L.Ed.2d 811 [the 14th Amendment requires States to provide indigent persons representation on their appeals as of right]; People v. Casiano, 67 N.Y.2d 906, 907, 501 N.Y.S.2d 808, 492 N.E.2d 1224 [failure to assign new counsel upon discovering nonfrivolous issues deprived appellant of right to effective assistance of counsel]; People v. Gonzalez, 47 N.Y.2d 606, 610, 419 N.Y.S.2d 913, 393 N.E.2d 987 [an indigent appellant must receive substantially the same assistance as one who can afford retained counsel] ).

The parties agree that a defendant is entitled to a procedure and forum in which to address claims of ineffective assistance of appellate counsel. They disagree as to what procedural mechanism is best suited or available.

The People, as appellant here, argue that CPL 440.10(1)(h) is a collateral remedy to address the judgment of conviction itself on matters outside the trial record and that ineffective assistance of appellate counsel claims are by nature postjudgment. They argue that the complaint of ineffective assistance of appellate counsel should be made in the Appellate Division through a motion for reargument, reconsideration or writ of error coram nobis. They point, by parallel argument, to the Legislature's provision in CPL 460.30 for extensions of time to appeal when, due to counsel's error, an appeal was not timely filed (see, People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130). They further argue that an application for reargument or reconsideration under CPL 470.50 is not limited to prejudgment claims as is CPL 440.10, by its terms.

Bachert, on the other hand, as respondent here, argues that the Appellate Division was correct in concluding that CPL 440.10 should be construed broadly to permit motions to vacate a judgment of conviction on the basis of appellate counsel ineffectiveness. He adopts the Appellate Division's reasoning that since he is entitled to an appeal as of right from a judgment of conviction (CPL 450.10 [1] ), ineffective assistance of counsel on appeal could be folded into a motion under CPL 440.10. He argues that this is an appropriate extension of relief under CPL article 440, which was intended to embrace the deprivation of constitutional rights outside the record, even though the category of ineffective assistance of appellate counsel was not specified by the Legislature at the time of its enactment of CPL 440.10 and the Criminal Procedure Law itself.

A motion to vacate judgment under CPL 440.10(1)(h) does not include the claim of ineffective assistance of appellate counsel and to force the fit would constitute legislation by judicial fiat. A motion under CPL 440.10(1)(h) limits the collateral attack to a judgment and to whether the judgment itself was obtained in violation of the defendant's constitutional rights (People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 905, 431 N.Y.S.2d 518, 409 N.E.2d 990 [Meyer, J., dissenting], supra; People v. Corso, 40 N.Y.2d 578, 580, 388 N.Y.S.2d 886, 357 N.E.2d 357; United States ex rel. Johnson v. Vincent, 507 F.2d 1309, 1312 (2d Cir.)). Appellate courts do not render judgments of conviction; they only affect them. To force this relatively new claim of appellate court error into that tight legislative formulation and into the trial courts for review is ill fitting to the statute and ill suited to the nisi prius court.

Likewise, a motion for reargument (CPL 470.50) is not an acceptable solution since "[a] motion for reargument is not an appropriate vehicle for raising new questions * * * which were not previously advanced either in this court or in the courts below" (see, Simpson v. Loehmann, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319). Also, the lack of uniformity and the relative shortness of time among the State's various appellate tribunals for making reargument motions, the longest time frame of which is 60 days from service of the order with notice of entry, would lead to disparate treatment of persons seeking review of ineffective assistance of appellate counsel claims. Moreover, reargument is not traditionally perceived as providing the fresh, clean examination which should be given to alleged deprivations of counsel.

As we have done in other times of need, we turn instead to coram nobis as the best available remedy under all the circumstances. In 1943 this court recognized and employed the writ of error coram nobis in Matter of Lyons v. Goldstein, 290 N.Y. 19, 25, 47 N.E.2d 425, which resurrected the dormant writ in this State (for the history of the writ see, Fuld, Writ of Error Coram Nobis, 117 N.Y.L.J. 2212, col. 1 [June 5, 1947]; and Cohen, Post-Conviction Relief in the New York Court of Appeals: New Wine and Broken Bottles, 35 Brooklyn L.Rev. 1). In its modern context a motion for a writ "presupposes a violation of the defendant's constitutional rights not appearing on the record, no negligence which could be attributed to the defendant for failure to have brought the alleged error to the attention of the court at the time of the trial, and further, that the current proceeding is not a substitute for a new trial, appeal or other statutory remedy" (Frank, Coram Nobis, p 3.01, at 23; 18 Am.Jur.2d, Coram Nobis, § 12,...