People v. Grimes

• Citation: 91 N.Y.S.3d 315,32 N.Y.3d 302,115 N.E.3d 587
• Decision Date: 23 October 2018
• Docket Number: No. 103,103
• Parties: The PEOPLE of the State of New York, Respondent, v. Jakim GRIMES, Appellant.
• Court: New York Court of Appeals

32 N.Y.3d 302

115 N.E.3d 587

91 N.Y.S.3d 315

The PEOPLE of the State of New York, Respondent,

v.Jakim GRIMES, Appellant.

No. 103

Court of Appeals of New York.

October 23, 2018

OPINION OF THE COURT

Chief Judge DiFIORE.

In People v. Andrews , 23 N.Y.3d 605, 616, 993 N.Y.S.2d 236, 17 N.E.3d 491 [2014], we held that counsel's failure to file a timely criminal leave application (CLA) to this Court within the thirty-day statutory timeframe provided by CPL 460.10(5)(a), or move pursuant to CPL 460.30 within the one-year grace period for an extension to cure the error, does not deprive a defendant of a constitutional right to the effective assistance of counsel or due process under the Sixth and Fourteenth Amendments of the United States Constitution. In the absence of a constitutional violation, a defendant cannot resort to coram nobis to abrogate the one-year time limitation on the remedy provided in CPL 460.30 for the improper conduct of his or her attorney in failing to file a timely CLA. We left open the question of whether a more protective rule should be recognized under the New York State Constitution ( id. at 616, 993 N.Y.S.2d 236, 17 N.E.3d 491 ). Today, we hold the same rule applies under article I, section 6 of the New York State Constitution. Thus, defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a CLA seeking leave to appeal to this Court.

I.

In 2012, defendant was convicted upon a plea of guilty of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. Counsel filed a notice of appeal on defendant's behalf and perfected the first-tier appeal. The Appellate Division affirmed the judgment of conviction, by order entered November 13, 2015 ( 133 A.D.3d 1201, 20 N.Y.S.3d 261 [4th Dept. 2015] ), a copy of which was served on appellate counsel by the People with Notice of Entry on November 17, 2015, starting the CPL 460.10(5) thirty-day timeframe in which defendant must make application pursuant to CPL 460.20 for a certificate granting leave to appeal for a discretionary, second-tier appeal to the Court of Appeals. The very next day, counsel wrote to defendant to inform him that he was "in the process of drafting the leave application to the court of appeals" and that defendant "should receive it shortly." Counsel drafted the CLA letter, but never sent it to the Court or to defendant.

More than a year later, defendant was released from prison. Approximately six weeks later, counsel received a letter from defendant, dated January 9, 2017, inquiring about the status of the CLA. Having failed to timely file an application for leave to this Court or seek an extension of time to file such an application pursuant to CPL 460.30, counsel moved for coram nobis relief in the Appellate Division, dated January 20, 2017, requesting "an extension of time to file an application for leave to appeal to the Court of Appeals."

Counsel argued that defendant was deprived of his right to due process and his right to counsel under article I, section 6 of the State Constitution, as well as under the Sixth and Fourteenth Amendments of the United States Constitution. He alleged that "due to law office failure and [his] lack of oversight" the CLA "was never timely filed and served and the case was later mistakenly marked as closed." As to the due diligence of defendant, counsel concluded, "[r]elying upon our representation, [defendant] could not have reasonably discovered within a one-year period that his appellate rights were not preserved." Counsel relied on People v. Syville , 15 N.Y.3d 391, 912 N.Y.S.2d 477, 938 N.E.2d 910 [2010], wherein we held that coram nobis is the appropriate procedural remedy in New York to afford relief for a violation of the Due Process Clause of the United States Constitution resulting from the deprivation of a first-tier appeal due to counsel's ineffectiveness in failing to file a notice of appeal within the one-year time limitation of CPL 460.30. Addressing a second-tier appeal in Andrews , however, we held that there is no equivalent federal constitutional due process or ineffective assistance claim for counsel's failure to seek leave to appeal to the Court of Appeals (see 23 N.Y.3d at 616, 993 N.Y.S.2d 236, 17 N.E.3d 491 ). Nonetheless, here, counsel argued that "New York Courts are free to extend constitutional protections beyond those required by the United States Constitution" and urged the Appellate Division to grant coram nobis relief to preserve defendant's "fundamental right to appeal." The People filed no papers in opposition.

The Appellate Division denied defendant's motion for a writ of error coram nobis ( 148 A.D.3d 1724, 49 N.Y.S.3d 326 [4th Dept. 2017] ). A Judge of this Court granted leave to appeal ( 29 N.Y.3d 1127, 64 N.Y.S.3d 677, 86 N.E.3d 569 [2017] ). We now affirm the Appellate Division order.

II.

By coram nobis, defendant seeks to extend his time to file a CLA for a discretionary, second-tier appeal to this Court beyond the time limitation set by the legislature in CPL 460.30. Since such a 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] [emphasis added] ), defendant now seeks to carve out an exception to the statute's command. Defendant's entitlement to coram nobis relief requires "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 ..., and further, that the current proceeding is not a substitute for a new trial, appeal or other statutory remedy" ( People v. Bachert , 69 N.Y.2d 593, 598, 516 N.Y.S.2d 623, 509 N.E.2d 318 [1987] [quotation marks and citation omitted] ). Historically, coram nobis was limited to correcting fundamental or constitutional errors in the judgment entered in the trial court. Prior to the enactment of the Criminal Procedure Law, we expanded the writ's scope to "afford the defendant a remedy in those cases in which no other avenue of judicial relief appeared available" ( People v. Hairston , 10 N.Y.2d 92, 93–94, 217 N.Y.S.2d 77, 176 N.E.2d 90 [1961] ; see Matter of Bojinoff v. People , 299 N.Y. 145, 151, 85 N.E.2d 909 [1949] ). Specifically, we enlarged coram nobis to include claims premised on the loss of the defendant's right to a first-tier appeal, or a lack of meaningful review on that direct appeal from the conviction caused by counsel's deficient legal performance, as well as state action or lack thereof (see e.g. People v. De Renzzio , 14 N.Y.2d 732, 733, 250 N.Y.S.2d 76, 199 N.E.2d 172 [1964] [court-appointed lawyer failed to prosecute a first-tier appeal in a murder case]; Hairston , 10 N.Y.2d at 93, 217 N.Y.S.2d 77, 176 N.E.2d 90 [prison authorities prevented defendant's efforts to take and perfect a first-tier appeal] ). Although "[m]ost of the common-law, coram nobis types of relief were abrogated when the Criminal Procedure Law was enacted" ( Andrews , 23 N.Y.3d at 611, 993 N.Y.S.2d 236, 17 N.E.3d 491, citing People v. Corso , 40 N.Y.2d 578, 580, 388 N.Y.S.2d 886, 357 N.E.2d 357 [1976] ), that legislation "did not expressly abolish the common-law writ of coram nobis or necessarily embrace all of its prior or unanticipated functions" ( Bachert , 69 N.Y.2d at 599, 516 N.Y.S.2d 623, 509 N.E.2d 318 ).

Therefore, in Syville , the Court recognized the continuing, albeit limited, availability of a "coram nobis type[ ] of relief [largely] abrogated when the Criminal Procedure Law was enacted;" specifically, we permitted the continued use of a type of "so-called ‘ Montgomery claim’ " ( Andrews , 23 N.Y.3d at 610–611, 993 N.Y.S.2d 236, 17 N.E.3d 491 ). In People v. Montgomery , we held "that every defendant has a fundamental right to appeal his conviction and that, accordingly, basic fairness and due process require that the right not be dissipated either because the defendant was unaware of its existence or counsel failed to abide by a promise to either file or prosecute an appeal" ( 24 N.Y.2d 130, 132, 299 N.Y.S.2d 156, 247 N.E.2d 130 [1969] ). This Montgomery relief, whereby coram nobis was initiated in the trial court for claims premised on the loss of the right to a first-tier appeal, was codified, in a modified form, in CPL 460.30 (see Corso , 40 N.Y.2d at 579–580, 388 N.Y.S.2d 886, 357 N.E.2d 357 ).¹ The statute, in recognition of the appellate jurisdiction of the courts, allows a defendant to seek permission from an intermediate appellate court to file a late notice of direct appeal on specified grounds, including the improper conduct of an attorney. In addition to its due diligence requirement, the statute bars relief if more than one year has passed from the time the taking of the appeal has expired ( CPL 460.30[1] ). The statute also provides for fact finding hearings in the trial court to enable the intermediate appellate court to resolve questions of fact, including any issue as to a defendant's due diligence (see CPL 460.30[5] ). Formerly, under Montgomery , when a violation of the absolute right to appeal was found, the trial court granted the coram nobis and restarted the 30–day period to take an appeal by resentencing a defendant (see Corso , 40 N.Y.2d at 580, 388 N.Y.S.2d 886, 357 N.E.2d 357 ). The 30–day clock to take the appeal now starts upon the granting of the CPL 460.30 motion by the appellate court.

The legislature amended CPL 460.30 in 1977 to include relief for a defendant who fails to timely seek a certificate granting leave to appeal from an order of the Appellate Division to the Court of Appeals due to the improper conduct of his attorney, in addition to other grounds (see CPL 460.30[1] ). In recognition of the appellate jurisdiction of this Court, the statute provides that the motion for...