People v. Omar Alvarez
2019 NY Slip Op 02383
New York State Court of Appeals
Decided: March 28, 2019
ISSUE:
Whether the Appellate Division properly denied defendant’s petition for a writ of error coram nobis based upon his claim that he was deprived of effective assistance of appellate counsel due to counsel’s failure to challenge the defendant’s sentence as unduly harsh and severe.
HOLDING:
The Court held that the Appellate Division properly denied the defendant’s petition for a writ of error coram nobis because the defendant was awarded meaningful representation on his direct appeal. Under the New York Constitution, a defendant must demonstrate that counsel failed to provide meaningful representation in order to prove a claim of ineffective assistance of appellate counsel.
FACTS OF THE CASE:
Defendant Omar Alvarez was convicted of conspiracy, murder, attempted murder, assault, criminal possession of a weapon and criminal sale of a controlled substance by a jury verdict and was sentenced to sixty-six and two-thirds years to life in prison. On appeal, Alvarez was assigned counsel who raised four reviewable issues: (1) the police conducted an illegal search; (2) trial court erroneously denied defendant’s request for an adjournment to review certain evidence; (3) the court illegally sealed the witness list; and (4) the verdict on the conspiracy count was against the weight of the evidence. Almost twenty years later, the defendant commenced a proceeding seeking a writ of error coram nobis and vacatur of the Appellate Division order affirming his conviction.
COURT’S ANAYLSIS:
The New York Court of Appeals held that the Appellate Division properly denied the defendant’s petition for a writ of error coram nobis. Under the New York Constitution, a defendant must demonstrate that counsel failed to provide meaningful representation in order to prove a claim of ineffective assistance of appellate counsel. While the Federal Constitution requires a reasonable probability, the State’s Constitution considers prejudice to be a significant, but not indispensable element in assessing meaningful representation. Therefore, the State standard offers a greater protection than the federal test because even in the absence of a reasonable probability of a different outcome, inadequacy of counsel still warrants reversal whenever a defendant is deprived of fair process.
Appellate advocacy is meaningful if it reflects a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument. However, effective appellate representation by no means requires counsel to brief or argue every issue that may have merit. Rather, appellate attorneys are afforded wide latitude in deciding which points to advance and how to order them. Counsel’s efforts should not be second-guessed with the clarity of hindsight and that the United States Constitution guarantees the accused a fair proceeding but not necessarily a perfect one. Here, the Court concluded that the fairness of defendant’s direct appeal was not compromised by appellate counsel’s performance when counsel allegedly failed to communicate with the defendant during the pendency of his direct appeal, submitted an appellate brief that was poorly structured and that did not challenge the length of the minimum portion of the indeterminate sentence imposed as unduly harsh and severe in the interest of justice, and neglected to file a criminal leave application seeking leave to appeal to this Court. Therefore, the defendant was not deprived of meaningful representation.
The Court recognizes ineffective assistance of counsel based upon the content of an appellate brief only in very limited circumstances. People v Turner determined that, in rare instances, the failure to raise a single argument on appeal may constitute a clear-cut and completely dispositive error that is so egregious and prejudicial as to deprive a defendant of the constitutional right to effective representation. To be certain, the Court rejects the federal rule that a defendant must show a reasonable probability that counsel’s errors changed the result of the case. Regardless, the Court is not indifferent to whether the defendant was or was not prejudiced by counsel’s ineffectiveness and it has not hesitated to take prejudice into account to the extent that as the defendant faults appellate counsel for failing to file a criminal leave application to this Court, such an omission does not, on its own, constitute ineffective assistance of counsel under either the Federal or State Constitutions.