People v. West

• Decision Date: 01 May 2003
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. OLIVER GIOLA WEST, JR., Appellant.
• Court: New York Court of Appeals Court of Appeals

100 N.Y.2d 23

789 N.E.2d 615

759 N.Y.S.2d 437

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. OLIVER GIOLA WEST, JR., Appellant.

Court of Appeals of the State of New York.

Argued March 27, 2003.

Decided May 1, 2003.

Center for Appellate Litigation, New York City (Jan Hoth-Uzzo and Robert S. Dean of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Morrie I. Kleinbart and Alan Gadlin of counsel), for respondent.

Chief Judge KAYE and Judges SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ concur.

OPINION OF THE COURT

WESLEY, J.

This case requires us to determine whether defendant abandoned his right to appeal when he failed to perfect his appeal for more than 14 years. He did.

This case has a long and tortured past. Defendant was convicted of rape and sodomy in the first degree and adjudicated a persistent felony offender. After sentencing, defendant was advised of his right to appeal, including written notice that instructed how to proceed on appeal as a poor person. With the aid of counsel, defendant filed a timely notice of appeal from the conviction. Defendant also moved pro se in the trial court for an order granting him copies of the pretrial and posttrial transcripts, indicating he intended to use the minutes in applications to state and federal appellate courts.¹ Defendant also alleged he was indigent and submitted an affidavit indicating as much.

Thereafter, defendant filed two consecutive pro se petitions in the United States District Court for the Southern District of New York for habeas corpus relief. In each he indicated he had not yet taken a state appeal from the conviction. Each was dismissed without prejudice. Defendant filed a third petition. The District Court dismissed it sua sponte on the ground that defendant had failed to exhaust his state remedies, one of many indications to defendant that he needed to pursue his claims through the state appellate process. Defendant appealed this determination to the United States Court of Appeals for the Second Circuit. In March 1989, the Clerk of the court asked the People for a copy of the state court appellate briefs and transcripts in order to discern whether defendant met the exhaustion requirement of 28 USC § 2254 (b). The People advised the court that defendant had not perfected his appeal and therefore no briefs or minutes had been prepared. The People further noted that under New York practice, an indigent appellant must make an application to the Appellate Division for the record to be prepared and that defendant had neither arranged for preparation of those minutes nor moved for leave to prosecute his appeal as a poor person. A copy of this letter was provided to defendant. The Second Circuit then summarily dismissed defendant's appeal and the United States Supreme Court subsequently denied defendant's application for a writ of certiorari (see West v Morgenthau, 495 US 938 [1990]).²

In 1998, 14 years after sentence was pronounced, defendant finally sought permission from the Appellate Division to prosecute his appeal as a poor person. The People opposed the motion and cross-moved for dismissal on the basis of laches. The First Department granted the People's motion and dismissed the appeal. In June 1999, defendant's application for leave to appeal to this Court was denied (93 NY2d 981 [1999]).

Defendant returned to federal court to seek habeas relief claiming he had been denied due process by the summary dismissal of his appeal and the denial of his poor person application. Noting the Appellate Division had no per se rule requiring dismissal of appeals for failure to prosecute, the District Court granted the petition unless the appeal was reinstated and counsel appointed for the purpose of requesting an extension of time to perfect the appeal. The court emphasized its disposition did not require the Appellate Division to entertain the appeal on the merits (see West v Breslin, 2001 WL 856604, 2001 US Dist LEXIS 10682 [2001]).

The case was restored to the Appellate Division calendar and counsel appointed. Defendant filed an application for poor person relief which the People opposed, again cross-moving for dismissal on the basis of laches. The Appellate Division dismissed the appeal, concluding defendant's 14-year delay and corresponding conduct demonstrated abandonment of his appeal.³ We now affirm.

The right to appeal is a statutory right that must be affirmatively exercised and timely asserted (see United States v Wenger, 58 F3d 280, 282 [7th Cir 1995], cert denied 516 US 936 [1995]). Consequently, a defendant who is properly informed of his appellate rights may not let the matter rest and then claim he did not waive the right to appeal (see Norris v Wainwright, 588 F2d 130, 137 [5th Cir 1979], cert denied 444 US 846 [1979]). To that end, the Appellate Divisions in 1964 promulgated rules that require assigned or retained counsel "immediately after the pronouncement of sentence" to advise a defendant in writing of the right to appeal and the time limitations involved (see 22 NYCRR 606.5 [b]; 671.3, 821.2 [a]; 1022.11 [a]). Additionally, a defendant must be informed of the manner for instituting an appeal and obtaining a transcript of the trial, and be advised of the right to seek leave for appointment of counsel and to proceed with the appeal as a poor person. Lastly, the rules of the Appellate Division, First Department, provide that appeals in criminal cases "must be brought on for argument within 120 days after the last day in which a notice of appeal was required to be filed, unless the time to perfect the appeal is enlarged by the court or a justice thereof" (22 NYCRR 600.8 [b]).

Defendant does not dispute he was advised in writing at the time of sentencing of his right to appeal. He claims, however, he was not advised of his right to seek poor person relief and therefore, the 14-year delay in perfecting his appeal should not be counted against him. Such a claim is belied by the notice defendant received:

"If you are without funds, after the notice of appeal has been filed, you must write to the Appellate Division requesting that counsel be assigned to you for the purpose of appeal. Send this letter to the Appellate Division, First Department, 27 Madison Avenue, New York, New York 10010. * * * [R]equest that you be granted permission to appeal upon the original record. You should mention you are without funds with which to retain counsel or to purchase a transcript of the proceedings. State fully your financial circumstances, explaining why you cannot afford to hire an attorney for an appeal or purchase a transcript of the proceedings. You must write this letter yourself."

Clearly, defendant was informed of his right to appeal and more specifically, how to apply for poor person relief.

We would be hard pressed to conclude the Appellate Division abused its discretion when it denied defendant's request for an extension of time in order to perfect his appeal in light of the obvious abandonment of his state appeal. While doing nothing in state court to pursue his appeal, defendant repeatedly attempted to bypass the state appellate process by filing petitions seeking federal habeas corpus relief. Additionally, he failed to pursue his appeal in state court despite rulings by the federal courts directing him to do so. Moreover, the Assistant District Attorney assigned to defendant's case, in response to a request by the Second Circuit for state court briefs and transcripts, specifically indicated defendant had not perfected his appeal and delineated what was required of defendant to perfect his appeal.⁴ A copy of this letter was provided to defendant in 1989—nine years before defendant filed his poor person application in the Appellate Division. While defendant was adequately informed of his right to appeal, he failed...