People v. Perez

• Decision Date: 03 April 2014
• Docket Number: Nos. 55, 56, 57, 58.,s. 55, 56, 57, 58.
• Parties: The PEOPLE of the State of New York, Respondent, v. Reynaldo PEREZ, Appellant. The People of the State of New York, Respondent, v. Ivan Calaff, Appellant. The People of the State of New York, Respondent, v. Alexander Dockery, also known as John Harris, Appellant. The People of the State of New York, Respondent, v. Teofilo Lopez, also known as Garcia Lopez, also known as Isidoro Garcia, Appellant.
• Court: New York Court of Appeals Court of Appeals

23 N.Y.3d 89
12 N.E.3d 416
989 N.Y.S.2d 418
2014 N.Y. Slip Op. 02326

The PEOPLE of the State of New York, Respondent
v.
Reynaldo PEREZ, Appellant.

The People of the State of New York, Respondent
v.
Ivan Calaff, Appellant.

The People of the State of New York, Respondent
v.
Alexander Dockery, also known as John Harris, Appellant.

The People of the State of New York, Respondent
v.
Teofilo Lopez, also known as Garcia Lopez, also known as Isidoro Garcia, Appellant.

Nos. 55, 56, 57, 58.

Court of Appeals of New York.

April 3, 2014.

Howard R. Birnbach, Great Neck, for appellant in the first above-entitled action.

Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy and Joseph N. Ferdenzi of counsel), for respondent in the first above-entitled action.

Robert S. Dean, Center for Appellate Litigation, New York City (Claudia Trupp of counsel), for appellant in the second above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (David M. Cohn and David E.A. Crowley of counsel), for respondent in the second above-entitled action.

Robert S. Dean, Center for Appellate Litigation, New York City (Barbara Zolot of counsel), for appellant in the third above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Deborah L. Morse and Gina Mignola of counsel), for respondent in the third above-entitled action.

Alison Wilkey, New York City, for Youth Represent, amicus curiae in the third above-entitled action.

Steven Banks, The Legal Aid Society, New York City (Kerry Elgarten of counsel), for appellant in the fourth above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (David M. Cohn and Hilary Hassler of counsel), for respondent in the fourth above-entitled action.

OPINION OF THE COURT

SMITH, J.

12 N.E.3d 417

These four cases involve criminal appeals that were not pursued for more than a decade—in one case more than two decades—after the filing of a notice of appeal. In each case, the

Appellate Division dismissed the appeal on the People's motion. We hold that the dismissals in People v. Perez, People v. Calaff and People v. Dockery did not violate defendants' constitutional rights and were proper exercises of

12 N.E.3d 418

discretion. We remit the fourth case, People v. Lopez, to the Appellate Division so that counsel can be appointed to represent Lopez in opposing the dismissal of his appeal.

I

Perez

Reynaldo Perez was convicted of murder and manslaughter in 1996, and was sentenced to consecutive terms totalling 33 ? years to life. On August 1, 1996, he filed a notice of appeal. In 1997, Perez's mother retained a lawyer whom we will call John Johnson to represent Perez on appeal, paying him a retainer of $30,000. Johnson did not prepare or file a brief.

The Departmental Disciplinary Committee for the Appellate Division, First Department began an investigation of Johnson in 2001. In 2003, the Committee notified Perez's mother that Johnson had been admonished for neglecting Perez's case. Apparently, Johnson continued to represent Perez after 2003, but he still did not pursue the appeal. In 2008, Johnson filed a motion in Supreme Court to set aside Perez's conviction under CPL 440.10. The motion was unsuccessful.

On August 22, 2012, Perez retained new counsel, who moved in the Appellate Division to enlarge the time to perfect Perez's appeal. The People cross-moved to dismiss the appeal. The Appellate Division granted the motion to dismiss on February 5, 2013, more than 16 years after the notice of appeal was filed (2013 N.Y. Slip Op. 63657[U] [2013] ). A Judge of this Court granted leave to appeal (21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 [2013] ), and we now affirm.

Calaff

Ivan Calaff was convicted of attempted burglary, on his plea of guilty, in 1993, and sentenced to 3 to 6 years. At sentencing, he was handed a printed form explaining the need to file a notice of appeal and describing the steps to be taken “[i]f you are without funds” to request the assignment of counsel. On April 15, 1993, the lawyer who represented Calaff at sentencing filed a notice of appeal. Calaff did not request the assignment of appellate counsel. He served his time and was released from prison in 1996.

Calaff was later convicted of several other crimes. Eventually, in 2004, he was adjudicated a persistent violent felon on a

burglary charge and was sentenced to 16 years to life. An appeal from the 2004 conviction was unsuccessful (People v. Calaff, 30 A.D.3d 193, 815 N.Y.S.2d 824 [1st Dept.2006] ).

On May 9, 2012, the Center for Appellate Litigation, which had represented Calaff on the appeal from the 2004 conviction, moved to be appointed as his counsel on the appeal that had begun in 1993, and sought poor person relief. The Appellate Division assigned counsel, granted poor person relief, and enlarged the time to perfect the appeal (2012 N.Y. Slip Op. 76425[U] [2012] ). The People moved to dismiss the appeal. In an affidavit submitted in opposition to the People's motion, Calaff asserted that the lawyer who represented him at sentencing had told him in 1993, in response to a question about the appeal: “Don't worry about that, I'll take care of it.” In 2008, according to Calaff's affidavit, he began to make inquiries about the appeal from his 1993 conviction, but got no helpful response until the Center for Appellate Litigation agreed in 2012 to take the case.

On February 19, 2013, almost 20 years after the notice of appeal was filed, the Appellate Division granted the People's motion to dismiss, saying that defendant's attempt “to explain his failure to follow the instructions he received at sentencing ....

12 N.E.3d 419

is refuted by the sentencing minutes and otherwise without merit” (People v. Calaff, 103 A.D.3d 500, 500, 959 N.Y.S.2d 427 [1st Dept.2013] ). A Judge of this Court granted leave to appeal (21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146 [2013] ) and we now affirm.

Dockery

In 1986, Alexander Dockery, then 16 years old, was convicted of robbery and committed to the New York State Division for Youth for a term of 2 to 6 years. The lawyer who represented him at trial and sentencing filed a notice of appeal on his behalf on February 28, 1986. Nothing was done to pursue the appeal for 22 years. Meanwhile, Dockery, like Calaff, served his time, was released, and committed more crimes. In 2000, under the name John Harris, he was convicted of burglary and sentenced as a persistent violent felony offender to 25 years to life. His appeal from that conviction was unsuccessful (People v. Harris, 304 A.D.2d 839, 757 N.Y.S.2d 878 [2d Dept.2003] ).

In 2008, Dockery moved pro se in the Appellate Division for poor person relief on his 1986 appeal. The People cross-moved to dismiss that appeal, and the Appellate Division granted the cross motion (2008 N.Y. Slip Op. 93213[U] [2008] ). In 2011,

Dockery, now represented by the Center for Appellate Litigation, moved to reinstate the 1986 appeal on the ground that he did not have the assistance of counsel at the time of the People's previous motion, and that service of that motion was defective. The appeal was reinstated (2011 N.Y. Slip Op. 93236[U] [2011] ), the People again moved to dismiss it, and that motion was granted on June 21, 2012, more than 26 years after the notice of appeal was filed (2012 N.Y. Slip Op. 76557[U] [2012] ). A Judge of this Court granted leave to appeal (21 N.Y.3d 911, 966 N.Y.S.2d 362, 988 N.E.2d 891 [2013] ), and we now affirm.

Lopez

Teofilo Lopez, having absconded before trial, was convicted in absentia of several counts of robbery in 1999. He was sentenced to concurrent terms of imprisonment, the longest of which was 15 years. The record contains a form dated August 23, 1999, apparently signed on Lopez's behalf by his attorney, addressed “TO MY ATTORNEY/OR THE COURT CLERK,” which says: “Please file a timely notice of appeal on my behalf.” The parties agree that this document may be considered a timely notice of appeal.

Lopez remained a fugitive for approximately 11 years; nothing was done in that time to prosecute his appeal. In 2010, he was rearrested and returned to court. He was then resentenced to correct his original sentence, which had omitted a term of postrelease supervision (see People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] ). The Legal Aid Society was assigned to represent him on appeal from the resentencing (2010 N.Y. Slip Op. 84894[U] [2010] ).

In 2012, Legal Aid moved on Lopez's behalf to amend the order assigning counsel so that it applied to the 1999 conviction rather than the resentence, for “leave to file and serve a brief in support of reversing the judgment on direct appeal,” and for other relief. The People moved to dismiss the appeal from the 1999 conviction for failure to prosecute. Legal Aid submitted an affirmation in opposition to this motion, making arguments on the merits and arguing, in the alternative, that the motion was premature because Legal Aid had not yet been assigned to the 1999...