Opinion
Argued January 12, 1970
Decided January 22, 1970
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, LYNN N. PETERSON, J.
Betty D. Friedlander for appellant. Robert E. Jones, District Attorney, for respondent.
MEMORANDUM. The order appealed from should be reversed and the case remitted to the County Court, Cortland County, for further proceedings in accordance with this memorandum.
In 1961 the assigned trial lawyer informed defendant that he declined to file a notice of appeal, but advised defendant of the 30-day time limit within which a notice of appeal must be filed. After sentencing, the assigned lawyer terminated his representation. No timely notice of appeal was filed. There is no violation of the rule set forth in People v. Montgomery ( 24 N.Y.2d 130) that assigned counsel must advise defendant of his right to appeal, nor is there a violation of the rule of People v. Callaway ( 24 N.Y.2d 127) that a defendant may rely on assigned trial counsel's promise to file a notice of appeal. But defendant is entitled to the assistance of appellate counsel in perfecting an appeal ( Swenson v. Bosler, 386 U.S. 258). This right extends to assistance in serving and filing a notice of appeal. Since the failure to have such assistance was prejudicial, the judgment of conviction should be vacated, and defendant remanded to the County Court, Cortland County, for resentence nunc pro tunc upon the previous finding of guilt so as to afford defendant "`an opportunity of prosecuting and perfecting an appeal, since the time for taking such an appeal would date from the rendition of the new judgment'" ( People v. Callaway, 24 N.Y.2d 127, 129, supra; People v. Hairston, 10 N.Y.2d 92, 94).
I dissent and vote to affirm on the ground that the result reached by the majority is an unnecessary extension of our decision in People v. Montgomery ( 24 N.Y.2d 130).
In Montgomery we held that a defendant must be informed of his right to an appeal and upon his mere assertion that he did not receive such information a hearing should be had to determine the question.
As the majority stated in Montgomery (at p. 132): "Our decision, very simply, demonstrates a fundamental concern that defendants be informed of their right to appeal, and that, where an attorney, whether assigned or retained, fails to apprise his client of this vital privilege, there is no justification for making the defendant suffer for his attorney's failing." (emphasis added).
In the instant case the defendant received a Montgomery-type hearing and the court found that he was informed of his right to an appeal. It is evident from the opinion in Montgomery that our decision therein was based on the fact that "there is no justification for making the defendant suffer for his attorney's failing". Where, however, such as in the instant case, it is clear that the sole reason for the untimeliness of the defendant's appeal was not caused by any failure of his attorney to inform him of that right or by any ignorance on his part of the procedures to be followed, but rather by his own lack of due diligence, it is my opinion that such inaction, when coupled with such knowledge, should be viewed as an effective waiver of his right to appeal.
Accordingly, the order appealed from should be affirmed.
Chief Judge FULD and Judges BURKE, BERGAN and BREITEL concur in memorandum; Judge SCILEPPI dissents and votes to affirm in an opinion in which Judge JASEN concurs; Judge GIBSON taking no part.
Order reversed, etc.