Failure to Timely File Criminal Leave Application Does Not Constitute Ineffective Assistance Under State Constitution

In People v. Grimes (Ct. App. 10/23/2018) (5-2), the Court of Appeals held that, under article I, section 6 of the New York State Constitution, a defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a criminal leave application. Judge Wilson authored a dissent, joined by Judge Rivera.

In 2012, the defendant pleaded guilty to CPCS 3º and CPCS 4º. Counsel filed a notice of appeal on defendant’s behalf and perfected the first-tier appeal. On November 13, 2015, the Appellate Division affirmed the judgment of conviction. The People provided appellate counsel with a copy of that decision with Notice of Entry on November 17, 2015, starting the CPL 460.10(5) thirty-day timeframe in which defendant must make application pursuant to CPL 460.20 for a certificate granting leave to appeal for a discretionary, second-tier appeal to the Court of Appeals. The very next day, counsel wrote to defendant to inform him that he was “in the process of drafting the leave application to the court of appeals” and that defendant “should receive it shortly.” Counsel drafted the CLA letter, but never sent it to the Court or to the defendant.

More than a year later, the defendant was released from prison. Approximately six weeks thereafter, counsel received a letter from defendant, dated January 9, 2017, inquiring about the status of the CLA. Having failed to timely file an application for leave to this Court or seek an extension of time to file such an application pursuant to CPL 460.30, counsel moved for coram nobis relief in the Appellate Division, dated January 20, 2017, requesting “an extension of time to file an application for leave to appeal to the Court of Appeals.”

Here, counsel argued that “New York Courts are free to extend constitutional protections beyond those required by the United States Constitution” and urged the Appellate Division to grant coram nobis relief to preserve defendant’s “fundamental right to appeal.” The People filed no papers in opposition.

The Appellate Division denied defendant’s motion for a writ of error coram nobis, and a Judge of the Court of Appeals granted leave to appeal.

On appeal, counsel argued that the defendant was deprived of his right to due process and his right to counsel under article I, section 6 of the New York State Constitution, as well as under the Sixth and Fourteenth Amendments of the United States Constitution. He alleged that “due to law office failure and [his] lack of oversight” the CLA “was never timely filed and served and the case was later mistakenly marked as closed.” Defense counsel argued that the defendant could not have reasonably discovered within a one-year period that his appellate rights were not preserved because he reasonably relied on appellate counsel’s representation. Counsel relied on People v. Syville (Ct. App. 10/14/2010), in which the Court held that coram nobis is the appropriate procedural remedy in New York to afford relief for a violation of the Due Process Clause of the United States Constitution resulting from the deprivation of a first-tier appeal due to counsel’s ineffectiveness in failing to file a notice of appeal within the one-year time limitation of CPL 460.30.

In reaching its conclusion, the Court had extended its decision in People v. Andrews (Ct. App. 6/12/2014), in which it held that counsel’s failure to file a timely criminal leave application within the thirty-day statutory timeframe provided by CPL 460.10 (5) (a), or move pursuant to CPL 460.30 within the one-year grace period for an extension to cure the error, does not deprive a defendant of the right to the effective assistance of counsel or due process under the Sixth and Fourteenth Amendments to the United States Constitution. In Andrews, the Court further held that in the absence of a constitutional violation, a defendant cannot resort to coram nobis to abrogate the one-year time limitation on the remedy provided in CPL 460.30 for the improper conduct of his or her attorney in failing to file a timely CLA.

In Andrews, the Court relied upon the fact that there is no equivalent federal constitutional due process or ineffective assistance claim for counsel’s failure to seek leave to appeal to the Court of Appeals. Because no such equivalent federal claim exists, the Court concluded that the defendant’s counsel was not constitutionally ineffective for failing to timely file a CLA with the Court of Appeals.

However, the Andrews court left open the question of whether a more protective rule should be recognized under the New York State Constitution. In Grimes, the Court held that the same rule applies under the New York State Constitution.

The majority began by noting that historically coram nobis relief was limited to correcting fundamental or constitutional errors at the trial level. Before the CPL was enacted, the Court expanded the availability of coram nobis relief to claims premised on the loss of the defendant’s right to a first-tier appeal or a lack of meaningful review on that direct appeal from the conviction caused by counsel’s deficient legal performance.

For the majority, the distinction between first-tier and second-tier appeals is dispositive. In Syville, noted above, the Court held that when a defendant’s ability to take a first-tier appeal as of right is extinguished because of ineffective assistance of counsel, coram nobis is the proper procedure to remedy the constitutional error as the time to seek relief pursuant to CPL 460.30 is no longer available. This is so because the Fourteenth Amendment to the U.S. Constitution guarantees representation by counsel in a state’s first-tier appeal from a conviction.

However, in People v. Kruger, a companion case to Andrews, cited above, where the Court held that coram nobis relief was not available to a defendant whose counsel failed to file a CLA because, “[u]nlike an appeal as of right, . . . there is no federal constitutional entitlement to legal representation on a discretionary application for an appeal to a state’s highest court.” (emphasis added).

The Court reasoned that on a second-tier appeal, the defendant has the benefit, from the perfection of the first-tier appeal, of a prepared or original record of the trial court proceedings, briefs by both counsel on the merits of the errors that allegedly occurred at trial, and the written opinion of the intermediate appellate court determining the validity of the conviction. Therefore, the second-tier appeal does not require, as a matter of constitutional law, the assignment of counsel for a meaningful appeal under the federal Due Process Clause

Thus, in Andrews, the Court held that the failure to file a CLA, standing alone, does not necessarily establish a deprivation of effective assistance of counsel or due process because there is no federal constitutional right to counsel on a second-tier appeal under the Due Process Clause. Because there was no violation of a constitutional right, coram nobis relief was not available. That reasoning guides the majority here, as they reach the same conclusion under article I, section 6 of the New York State Constitution.

In his dissent, Judge Wilson began, “This case is not about whether criminal defendants should have counsel to seek our review — they do, and Mr. Grimes did. Nor is this case about whether criminal defendants have a right to petition us to grant leave — they do, and Mr. Grimes did.”

Judge Wilson notes that New York courts have long held that the right to counsel under the New York State Constitution is older, broader, and more powerful than the right to counsel under the federal Constitution, and New York’s right to counsel jurisprudence has developed independently of federal law.

Judge Wilson points out that the Court of Appeals court rules, and the rules of each Appellate Division prior to the adoption of the uniform rules, all require a defendant’s counsel in the first-tier appeal to file a CLA upon request. He further notes that the Court of Appeals’ own website states: “The Rules of this Court and the Appellate Division require counsel assigned or retained at the intermediate appellate court to file an application for leave to appeal if the defendant requests.”

Judge Wilson argues that the State has made a clear decision to provide counsel for criminal defendants wishing to file a CLA after a first-tier appeal. He notes that the State does not have to provide counsel for defendants seeking leave to appeal, but since it has done so, the State constitution requires counsel to meet constitutional standards of effectiveness. He points out that in People v. Stultz (Ct. App. 5/4/2004), the Court held that, as a matter of state constitutional law, appellate counsel must be held to the same standard of effectiveness as trial counsel.

Judge Wilson criticized the majority’s heavy reliance on federal case law, particularly because the State’s Right to Counsel Clause includes unique safeguards greater than those recognized by other states and federal courts.

Judge Wilson further argued that the majority’s holding sends the following message:

In the trial courts and first-line appeal courts, you have the constitutional right to effective counsel. The State requires your appellate counsel to continue to represent you when you petition the Court of Appeals. But when your lawyer is petitioning the State’s highest court, ineffective assistance of counsel is just fine.

He concludes, “It is also just plain weird to say that we require appointed counsel to prepare CLA applications but refuse to hold counsel to minimal standards of professional conduct, leaving defendants (and this Court) to suffer the consequences.”




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