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The 440 Motion: Raising Ineffective Assistance Claims After Direct Appeal

14600834_mlPeople v Grubstein

2014 NY Slip Op 07924 [24 NY3d 500]

New York Court of Appeals

Decided on November 18, 2014

Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

The New York Court of Appeals: Failure To Raise Ineffective Assistance Claim On Direct Appeal Does Not Bar Pro Se Defendant From Raising The Issue Under CPL 440.10

Issue: Whether a defendant is barred from raising a claim on a motion to vacate the judgment that he or she was deprived of the right to counsel when pleading guilty pro se where he or she failed to raise it on direct appeal?

Summary: Following a guilty plea to driving while intoxicated, the Tuxedo Town Court, Orange County, granted defendants motion to vacate the judgment of conviction. The People appealed. The Supreme Court, Appellate Term reversed. Defendant was granted leave to appeal. The Court of Appeals held that defendant was not barred from raising the claim that he was deprived of the right to counsel when he pled guilty pro se on motion to vacate judgment.

See Also: Prompt Outcry Testimony: The Prosecution Must Give Advanced Notice

Holding: The Court of Appeals held that that a defendant who asserts that he or she was deprived of the right to counsel when pleading guilty pro se is not barred from raising that claim in a motion under CPL 440.10 where the trial court fails to advise the defendant of his or her right to appeal.


Legal Analysis: The Court of Appeals reversed and remitted the case in the interest of fairness without expressing any opinion on the merits of defendants claim.

The unanimous court first acknowledged that when the record is sufficient to permit review of an issue on direct appeal, a defendant who has either not appealed a conviction or, having appealed failed to raise that issue, is barred from later asserting it as a basis for post-conviction relief (CPL 440.10(2)(c); People v. Cuadrado, 9 N.Y.3d 362[2007]). But, in reviewing CPL 440.10(2)(c), the Court held that the legislature used the term unjustifiable to imply that some failures are justifiable. Moreover, such an interpretation was supported by the common-law established prior to the enactment of CPL article 440.

Here, an interference with the right to counsel that impaired the defendants ability to pursue appellate relief was sufficient justification; especially considering that the trial court is required to advise pro se defendants of their right to appeal (22 NYCRR 671.5). If, as here, a defendant was indeed deprived of that right, that very deprivation may well have led him or her either not to appeal or not to have presented the issue to an appellate court. Thus, a defendant who has wrongly been deprived of a lawyer can hardly be blamed for failing to follow customary legal procedures.

Facts: Defendant was charged with aggravated driving while intoxicated and driving while intoxicated. On October 30, 2008, he appeared before the Justice Court of the Town of Tuxedo without counsel and pled guilty to a charge of driving while intoxicated (Vehicle and Traffic Law 1192[3]). Thereafter, on that same day, a judgment of conviction was entered upon his plea of guilty. The trial court failed to advise defendant of his right to appeal, and no appeal was taken.

On June 5, 2010, he was again arrested for driving while intoxicated. Thereafter, he was indicted for violating Vehicle and Traffic Law 1192(2?a) and Vehicle and Traffic Law 1192(3) as class E felonies in light of his prior conviction (Vehicle and Traffic Law 1193[1][c][i]).manhattan-skyline-9619-edit

On November 5, 2010, defendant moved to withdraw his guilty plea to the charge entered on October 30, 2008. He argued that he had been pro se in that matter and, prior to entering his guilty plea, had neither been advised by the court nor aware that any subsequent charge of driving while intoxicated in New York would be charged as a felony, of any potential defenses, or of his right to challenge the basis for his arrest and any statements attributed to him by the arresting officer. The People opposed defendants motion. The trial court granted the motion finding that defendants waiver of counsel was not made knowingly or intelligently. The People appealed.

On Dec. 10, 2012, the Appellate Term reversed concluding that the trial court erred in deciding the merits of certain of defendants claims because to the extent that adequate facts appeared in the record to evaluate those claims the only possible avenue of review was a direct appeal. The Court of Appeals granted leave to appeal and reversed.



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