Effective Assistance of Counsel And N.Y. Criminal Procedure Law §440 (The 440 Motion).
People v. Grubstein
New York Court of Appeals
2014 NY Slip Op 07924
Decided on: November 18, 2014
Issue: Whether a pro se defendant who pleads guilty to a misdemeanor charge is barred from raising a claim that he was deprived of his right to effective assistance of counsel in a CPL 440.10 motion when he failed to raise this claim on direct appeal.
Summary: Defendant moved to withdraw his guilty plea for a misdemeanor charge of driving while intoxicated in Town Court. The motion was made two years after he pled guilty as a pro se defendant. The Town Court granted the motion, holding that the defendant’s decision to waive his right to counsel and defend himself “was not made knowingly or intelligently.” The Appellate Term reversed this decision, claiming that the only recourse for review of the decision against defendant was direct appeal. The Court of Appeals disagreed and reversed. It remitted the case to the Appellate Term, Ninth and Tenth Judicial Districts to consider issues raised but not determined on appeal.
Holding: The Court of Appeals held that a pro se defendant who claims that his right to counsel was deprived when he pleaded guilty to a misdemeanor charge is not barred from raising that issue in a CPL 440.10 motion because he failed to raise ineffective assistance on direct appeal.
Facts: In 2008, a pro se defendant pled guilty in Town Court to a misdemeanor driving while intoxicated charge. During the Town Court proceeding, defendant was not represented by counsel and did not receive advice on his right to appeal. As such, he did not appeal his conviction. Two years later, in 2010, the defendant was arrested for a similar offense and charged with a felony under VTL § 1193 (1)(c)(i), which applies to a person who drives while intoxicated after having been convicted of such a crime within the preceding 10 years. He then moved in the Town Court to withdraw his guilty plea from 2008.
Legal Analysis: In its opinion, the court reviewed the general rule relating to direct appeals. Essentially, when an issue is permitted for review on direct appeal, the defendant who has not appealed the conviction in the correct amount of time, or the defendant who has appealed correctly, but failed to raise an issue on appeal, loses the ability to assert this issue as a basis for post-conviction relief. People v. Cuadrado, 9 N.Y.3d 362 (2007). Furthermore, the court cited CPL § 440.10(2)(c), which states that a court must deny a motion to vacate a judgment when, although sufficient facts appear on record…to have permitted, upon appeal from such judgment, adequate review of the ground or issue…no such appellate review occurred. Under § 440.10(2)(c), the standard for denying a motion to vacate a judgment is that the failure to make an appeal or the failure to raise an issue on appeal must be unjustifiable.
However, the court noted that this general rule poses a risk of unfairness to a defendant who claims that he was deprived of his right to counsel. The court reasoned that this very deprivation of right to counsel could be what leads a defendant not to appeal a judgment in the first place, or causes failure to raise an issue during an appeal. As such, the court reasoned that a defendant can “hardly be blamed for failing to follow customary legal procedures” if he had no way of knowing them.
The court indicated that § 440.10(2)(c) takes into account justifiable reasons for not appealing a judgment or failing to raise a particular argument on appeal. Therefore, a defendant’s inability to obtain counsel, which ultimately hindered his decision to pursue an appeal, should normally qualify as a justifiable reason under § 440.10(2)(c). When the Town Court in this case failed to inform the defendant in 2008 that he had a right to appeal the judgment against him, this justified defendant’s failure to appeal under § 440.10(2)(c).
The court concluded that the defendant was not barred from raising a deprivation of right to counsel claim in a CPL 440 motion.