People v. Rosario
| Decision Date | 16 December 2015 |
| Citation | 26 N.Y.S.3d 490,46 N.E.3d 1043,26 N.Y.3d 597 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Luciano ROSARIO, Appellant. The People of the State of New York, Respondent, v. Marcos Llibre, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Robert S. Dean, Center for Appellate Litigation, New York City (Robin Nichinsky of counsel), for appellant in the first above-entitled action.
Robert T. Johnson, District Attorney, Bronx (David P. Johnson, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent in the first above-entitled action.
Robert S. Dean, Center for Appellate Litigation, New York City (Robin Nichinsky of counsel), for appellant in the second above-entitled action.
Cyrus R. Vance, Jr., District Attorney, New York City (Hope Korenstein and
Patrick J. Hynes of counsel), for respondent in the second above-entitled action.
In People v. Syville, 15 N.Y.3d 391, 912 N.Y.S.2d 477, 938 N.E.2d 910 (2010), we held that a defendant who learns, after the expiration of the one-year grace period provided in CPL 460.30, that a notice of appeal was not timely filed on his behalf due to the ineffective assistance of his counsel may, under very limited circumstances, have recourse by way of a coram nobis application. Defendants in these appeals claim they are entitled to such relief. We disagree, and therefore affirm in both appeals.
In 2008, Luciano Rosario was arrested and charged with various misdemeanor counts of stalking and harassment. A temporary order of protection was issued directing him to stay away from the complainant. Rosario violated that protection order and was charged with four counts of criminal contempt in the second degree.
He appeared with his counsel and was offered a plea to second-degree harassment and second-degree attempted criminal contempt with definite concurrent sentences, the greatest of which was 30 days. When Rosario indicated he did not understand all of the consequences resulting from the plea, the court declined to accept Rosario's plea and adjourned the matter to a later date.
Several weeks later, Rosario again appeared with counsel and accepted the People's offer and pleaded guilty. The court asked if Rosario waived "formal allocution, prosecution by information, and waive[d] the right to appeal," to which counsel responded, "Yes." Rosario was immediately sentenced consistent with his plea. No notice of appeal was filed.
Nearly five years later, Rosario, through new counsel, filed this application for a writ of error coram nobis claiming that his plea counsel did not speak with him about his right to appeal. He claimed that had he been so informed, he would have exercised it. Specifically, he contends that he lost his job and is now subject to deportation due to his convictions, which he claimed rested on pleas that were not knowing, intelligent, and voluntary when made.
In addition to his own affidavit, Rosario submitted an affirmation from his current counsel who stated that Rosario's former counsel, speaking through her organization's counsel, had stated that she had no specific recollection of what transpired in the case. However, it was her general practice to advise clients about the right to appeal and to provide them a written statement to that effect. He argued that coram nobis relief should be granted due to counsel's failure to advise him of his appeal rights and that he should be provided an opportunity to file a notice of appeal.
In opposition, the People argued that Rosario's claim that his plea counsel did not apprise him of the right to appeal was unsupported and, in any event, Rosario had no viable issues to appeal. The People submitted a letter from U.S. Immigration and Customs Enforcement which revealed that a search of the Department's records failed to show that Rosario had ever been in immigration proceedings. Further, the letter states that it did not appear that Rosario would be subject to deportation based on these criminal convictions. Furthermore, the People argued, Rosario failed to exercise due diligence with respect to any potential appellate claims.
The Appellate Division denied Rosario's writ of error coram nobis without opinion (2014 N.Y. Slip Op. 66337[U] [1st Dept. 2014] ). A Judge of this Court granted Rosario leave to appeal (24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ).
In June 2006, Marcos Llibre was indicted on charges of criminal possession of a controlled substance in the third and fourth degrees and attempted criminal sale of a controlled substance in the third degree. In April 2007, Llibre accepted a plea to fourth-degree criminal possession of a controlled substance with a promise of five years' probation.
At the plea proceeding, the court confirmed with Llibre that he discussed the case and the decision to plead guilty with counsel. The court informed Llibre of the rights that he was giving up by pleading guilty. The court also specifically asked Llibre whether he understood that he was waiving his right to appeal, to which Llibre answered in the affirmative. Llibre executed a written waiver of appeal and was sentenced as promised in the plea agreement.
In December 2013, some six years after his time to file a notice of appeal had expired, Llibre petitioned for a writ of error coram nobis. He alleged that counsel at his plea hearing was constitutionally ineffective because he had failed to advise him of his right to appeal, to ascertain if he wished to appeal, or to file a notice of appeal on his behalf. The Appellate Division denied Llibre's writ of error coram nobis (2014 N.Y. Slip Op. 73663[U] [1st Dept.2014] ). A Judge of this Court granted Llibre leave to appeal (24 N.Y.3d 1121, 3 N.Y.S.3d 762, 27 N.E.3d 476 [2014] ).
The procedure for taking an appeal from a judgment of conviction or sentence in a criminal matter is relatively straightforward. A defendant who wishes to take an appeal must generally do so within 30 days after imposition of sentence (see CPL 460.10[1][a] ). CPL 460.30 allows an appellate court to grant an extension of time to file a notice of appeal if defendant makes a motion, with due diligence, after the 30 days has expired but in no event more than one year thereafter. "The one-year grace period is strictly enforced ‘since the time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them’ " (People v. Andrews, 23 N.Y.3d 605, 611, 993 N.Y.S.2d 236, 17 N.E.3d 491 [2014] [citation omitted] ).
In People v. Syville, 15 N.Y.3d 391, 912 N.Y.S.2d 477, 938 N.E.2d 910 (2010), this Court considered whether defendants may be afforded an opportunity to file a notice of appeal, even beyond the one year and 30 days permitted under the CPL. In Syville, the defendants had made timely requests to their attorneys to file a notice of appeal on their behalf but their attorneys failed to comply. We held that when an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant demonstrates that the omission could not reasonably have been discovered within the one-year period, the time limit imposed in CPL 460.30 should not categorically bar an appellate court from considering a coram nobis application to pursue an untimely appeal. Thus, coram nobis relief is not just another stop on a continuum of opportunities for a defendant to seek appellate relief. Rather, it is extraordinary relief only to be provided in "rare case [s]" when "a right to appeal was extinguished ‘due solely to the unconstitutionally deficient performance of counsel’ " (Andrews, 23 N.Y.3d at 611, 993 N.Y.S.2d 236, 17 N.E.3d 491, citing People v. Syville, 15 N.Y.3d 391, 398, 912 N.Y.S.2d 477, 938 N.E.2d 910 [2010] ).
We recently considered the Syville rule in People v. Andrews, 23 N.Y.3d 605, 993 N.Y.S.2d 236, 17 N.E.3d 491 (2014), where the defendant pleaded guilty to selling narcotics and executed a written waiver of his right to appeal in conjunction with an agreement that he enter a drug treatment program. He was sentenced to time served and released from custody that day. Andrews did not file a notice of appeal.
He later moved, beyond the one–year–and–30–day time period afforded under the CPL, for coram nobis relief under Syville, claiming that his lawyer had been ineffective for not filing a notice of appeal. We held that Andrews failed to establish that his attorney had been ineffective, finding that defendant made only "perfunctory claims" that he had asked his lawyer to file a timely notice of appeal and had not shown that it was impossible to discover the omission with reasonable diligence (id. at 615, 993 N.Y.S.2d 236, 17 N.E.3d 491 ). Andrew's former attorney stated that she had discussions regarding the possibility of an appeal with Andrews (as she did with every client) and he had decided not to pursue that route because he wanted to accept a sentence of time served and end his case (id. ). We noted that those statements were consistent with Andrews' execution of a written waiver of his right to appeal before the court, which "presumptively demonstrated a desire not to seek appellate review" (id., citing People v. Parris, 4 N.Y.3d 41, 50, 790 N.Y.S.2d 421, 823 N.E.2d 827 [2004] ).
The cases before us now do not resemble Syville or Andrews. Significantly, neither defendant claims that he requested that his attorney file a notice of appeal and that his attorney failed to comply with that request. Rather, they claim that counsel did not advise them of the right to appeal and had defendants known about their right to appeal, they would have requested one. However, in both appeals, the only evidence proffered in support of the contention that defendants were not apprised of their appellate rights is self-serving affidavits. The records as a whole reveal that defendants knew about their right to appeal. Thus, to grant defendants relief here would be to broaden the ...
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