People v Andrews
2014 NY Slip Op 04233
New York Court Of Appeals
Decided on: June 12, 2014
The Common Law Writ Of Errors Coram Nobis: A Last Resort In The Realm Of Criminal Appeals.
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Summary: Each Defendant in Patel, Andrew and Kruger did not file a timely notice of appeal and eventually sought relief under a writ of error coram nobis based on ineffective assistance of counsel. The Court Of Appeals found that in each case the Defendant’s had other procedural recourse to seek Appellate relief. The writ of error coram nobis may be used to assert a claim that appellate rights were extinguished by ineffective legal assistance in those rare cases where an attorney failed to comply within atimely request for the filing of a notice of appeal and the Defendant alleges the omission could not reasonably have been discovered. The Court Of Appeals denied relief under the writ of eror coram nobis because the Defendants should have known that a notice of appeal was not filed.
Issue: Whether the Defendants are entitled to relief under the writ of error coram nobis in order to pursue their untimely appeals.
Holding: The Court Of Appeals denied relief under the writ of error coram nobis. A writ of error coram nobis may be used to assert a claim that appellate rights were extinguished by ineffective legal assistance. It is those “rare case” where an attorney has failed to comply within a timely request for the filing of a notice of appeal and the Defendant alleges that the omission could not reasonably have been discovered within the one-year period and had no other procedural recourse to raise such an issue. When this occurs, a coram nobis application to the Appellate division is the proper remedy.
Facts: In People v. Vinond Patel,
Defendant Patel pleaded guilty to possessing child pornography and waived his right to appeal orally and in writing. Patel sought permission to file a late notice of appeal stating his attorney failed to advise him, the Appellate Division denied that motion. Three years later, Patel applied for coram nobis relief in the Appellate Division, arguing his attorney was ineffective in failing to file a notice of direct appeal.
In People v Churchill Andrews,
Defendant Andrews pleaded guilty to selling narcotics and executed a written waiver of his right to appeal in conjunction with a drug-treatment agreement. Andrews accepted a sentence of time served and the court noted that he had previously waived his right to appeal. Andrews filed a CPL 440 motion to vacate the judgment but it was denied by the supreme court and the Appellate Divison granted permission to appeal. As the Appellate Divison was deciding the case, Andrews sought a coram nobis relief, claiming his lawyer was ineffective for not filing a notice of direct appeal. The Appellate Division rejected both claims and the Court Of Appeals granted permission to appeal.
In People v. Kevin Kruger,
Defendant Kruger pleaded guilty to first-degree burglary, waiving his right to appeal orally and in writing. Kruger appealed and the Appellate Division confirmed that the waiver of his appeal encompassed his challenge to the guilty plea. Kruger did not file an application for discretionary permission to appeal to the Court Of Appeals, CLA CPL 460.15. Kruger sought coram nobis relief claiming that his lawyer agreed to file the Criminal Leave Application (CLA) and neglected to do so. The Appellate Division held that Syville does not apply to untimely criminal leave applications. The Court Of Appeals granted him leave to appeal.
Legal Analysis: The Court Of Appeals relief heavily on the case of People v. Syville 15 NY3D 391, it held that a writ of error coram nobis may be used to assert a claim that appellate rights were extinguished by ineffective legal assistance. It is available in “rare cases” in which Defendant has no other procedural recourse to raise an issue. The Court of Appeals held that in most cases, Defendants are in a position to discover the failure to file a note of appeal within the one year-grace period, and, only if Defendant’s who could not reasonably have discovered the omission during that period are entitled to utilize the coram nobis procedure.
An appeal is initiated by filing a notice of appeal within 30 days after sentence is imposed. A writ of error coram nobis is available to alleviate a constitutional wrong when a Defendant has no other procedural resource. In People v. Syville 15 NY3d 391, recognized that a Defendant must be allowed to assert that a right to appeal was extinguished solely to unconstitutionally deficient performance of counsel in failing to file a timely notice of appeal. When this occurs, the proper procedure is to seek relief under a writ of error coram nobis to the Appellate Division. In each of the three cases, Defendant’s were aware that a notice of appeal was not filed and therefore could not seek relief under a writ of error coram nobis when they still had other procedural recourse.
In Patel, Defendant realized that a notice of appeal had not been filed within 30 days of sentencing and moved for CPL 460.30 relief before the one-year grace period elapsed. Therefore, Defendant could not seek relief under a writ or error coram nobis.
In Andrew, his attorney states that she had discussions regarding the possibility of an appeal with Defendant, and he decided that he did not want to pursue that route and wanted to accept the time served and end his case. Those statements were consistent with Defendant’s execution of a written waiver of his right to appeal in the presence of a Judge. Defendant did not argue that his attorney, or the court, failed to inform him about the appellate process. He also did not explain why he waited more than two years to seek relief under a writ of error coram nobis after he obtained an attorney to represent him. Appellate Division properly rejected Defendant’s Syville claim and The Court Of Appeals denied his relief.
In Kruger, Defendant sought permission to file an untimely criminal leave application, CLA, to The Court Of Appeals, and not a leave to appeal to an intermediate appellate court. Unlike an appeal as of right, there is no federal constitutional entitlement to legal representation on a application for an appeal to a State’s highest court. The failure to file a CLA on his own, does not establish that Defendant was deprived of effective assistance of counsel, or due process of law and was therefore not entitled to seek relief under a writ of error coram nobis.