People v. Grubstein
| Decision Date | 18 November 2014 |
| Citation | 2 N.Y.S.3d 1,25 N.E.3d 914,2014 N.Y. Slip Op. 07924,24 N.Y.3d 500 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Howard GRUBSTEIN, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Richard L. Herzfeld, P.C., New York City (Richard L. Herzfeld of counsel), for appellant.
David M. Hoover, District Attorney, Middletown (Elizabeth L. Schulz and Andrew R. Kass of counsel), for respondent.
We hold that a defendant who asserts that he was deprived of his right to counsel when he pleaded guilty pro se is not barred
from raising that claim in a motion under CPL 440.10 by his failure to raise it on direct appeal.
In 2008, defendant pleaded guilty in Tuxedo Town Court to a misdemeanor charge of driving while intoxicated. He was not represented by counsel in the Town Court proceeding, was not advised of his right to appeal, and took no appeal. In 2010, having been arrested again for a similar offense, he was charged with a felony under Vehicle and Traffic Law § 1193(1)(c)(i), applicable to a person who drives while intoxicated after having been convicted of such a crime within the preceding 10 years. He then moved in Town Court to withdraw his 2008 guilty plea.
Town Court granted the motion, concluding that defendant's “ waiver of counsel was not made knowingly or intelligently.” On the People's appeal, the Appellate Term reversed, concluding that Town Court erred in deciding the merits of “certain of defendant's claims” because “to the extent that adequate facts appeared in the record to evaluate” those claims “the only possible avenue of review was a direct appeal” (People v. Grubstein, 37 Misc.3d 142[A], 2012 N.Y. Slip Op. 52285[U], *2, 2012 WL 6554673 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2012] ). A Judge of this Court granted leave to appeal (21 N.Y.3d 1015, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ), and we now reverse.
It is correct as a general matter that, when the record is sufficient to permit review of an issue on direct appeal, a defendant who either has not appealed his conviction or, having appealed, has failed to raise that issue is barred from later asserting it as a basis for post-conviction relief (see People v. Cuadrado, 9 N.Y.3d 362, 850 N.Y.S.2d 375, 880 N.E.2d 861 [2007] ). CPL 440.10(2)(c) says:
But there is an obvious risk of unfairness in applying this procedural bar where the ground that the defendant seeks to
raise is that he was deprived of his right to counsel. If he was indeed deprived of that right, that very deprivation may well have led him either not to appeal or not to have presented the issue to an appellate court. A defendant who has wrongly been deprived of a lawyer can hardly be blamed for failing to follow customary legal procedures.
Section 440.10(2)(c) itself appears to recognize this problem, by making its bar applicable only where the failure to appeal, or the failure to raise a particular argument, is “unjustifiable.” The statute thus implies that such failures are sometimes justifiable, and an interference with the right to counsel that impaired the defendant's ability to pursue appellate relief should normally be a sufficient justification. Here, the justification is made stronger by Town Court's failure, at the time of the 2008 plea and sentence, to advise defendant of his right to appeal, though an applicable regulation requires that advice to be given when a defendant appears pro se (see 22 NYCRR 671.5 ).
Before the enactment of CPL article 440 New York courts recognized, in cases discussing the writ of error coram nobis, article 440's common-law predecessor, that the usual procedural...
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