People v. Grubstein

• Citation: 2014 N.Y. Slip Op. 07924,25 N.E.3d 914,2 N.Y.S.3d 1,24 N.Y.3d 500
• Parties: The PEOPLE of the State of New York, Respondent, v. Howard GRUBSTEIN, Appellant.
• Decision Date: 18 November 2014
• Court: New York Court of Appeals

24 N.Y.3d 500
25 N.E.3d 914
2 N.Y.S.3d 1
2014 N.Y. Slip Op. 07924

The PEOPLE of the State of New York, Respondent
v.
Howard GRUBSTEIN, Appellant.

Court of Appeals of New York.

Nov. 18, 2014.

2 N.Y.S.3d 1

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.

OPINION OF THE COURT

SMITH, J.

25 N.E.3d 914

24 N.Y.3d 501

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

24 N.Y.3d 502

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.

2 N.Y.S.3d 2

25 N.E.3d 915

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:

“Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment

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