The People, Respondent,v.Jakim Grimes, Appellant.

Brief

N.Y.September 13, 2018

To Be Argued By JAMES P. MAXWELL, ESQ. (TIME REQUESTED: 15 MINUTES) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. JAKIM GRIMES, Defendant-Appellant. APL-2017-00167 Indictment No. 2011-0593-1 Index No. 2011-0696 Appellate Division Docket No. KA 12-01595 RESPONDENT’S BRIEF WILLIAM J. FITZPATRICK, ESQ. Onondaga County District Attorney Attorney for Respondent Criminal Courthouse, 4th Floor 505 South State Street Syracuse, NY 13202 Tel: (315)435-2470 JAMES P. MAXWELL, ESQ. Chief Assistant District Attorney Of Counsel DATE COMPLETED: January 30, 2018 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES QUESTIONS PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS 1 1 2 3 POINT I THE ORDER OF THE APPELLATE DIVISION DENYING DEFENDANT’S APPLICATION TO MAKE A LATE CRIMINAL LEAVE APPLICATION IS NOT APPEALABLE TO THIS COURT 6 POINT II THE APPELLATE DIVISION DID NOT ERR AS A MATTER OF LAW WHEN IT DENIED DEFENDANT’S CORAM NOBIS MOTION... 7 A. Criminal Procedure Law Section 460.30 (1) adequately provides defendants a chance to ask to extend the time to apply for leave to appeal to the Court of Appeals B. This Court should not grant defendants a right under the New York State Constitution to an infinite ability to seek permission to extend the time to ask to take an appeal to this Court C. Defendant received effective appellate representation in this case 8 11 19 POINT II DEFENDANT FAILED TO EXERCISE DUE DILIGENCE IN MAKING HIS CORAM NOBIS MOTION 21 CONCLUSION 23 WORD COUNT 24 TABLE OF AUTHORITIES PAGE CASES Evitts v Lucey, 469 US 387 (1985), 12, 17 15' O’Sullivan v Boerckel 526 US 838 0999) People v Andrews, 23 NY3d 605 (2014), reargument denied 24 NY3d 937 (2014), 14, 17 People v Ariune, 30 NY3d 347 (2017). 16, 18 People v Bachert, 69 NY2d 593 (1987), 14, 19 People v Borrell 12 NY3d 365 (2009), 20 People v Corso. 40 NY2d 578 (1976) People v Grimes, 133 AD3d 1201 (2015) People v Grimes, 148 AD3d 1724 (4th Dept 2017), 13 2 2 People v Grimes, 29 NY3d 1127 (2017), 3 People v Jones, 100 NY2d 606 (2003). 19 People v Montgomery, 24 NY2d 130 (1969), 12 People v Perez, 23 NY3d 89 (2014) 18 People v Rosario, 26 NY3d 597 (2015). 16, 22 People v Stultz. 2 NY3d 277 (2004) 20 People v Svville, 15 NY3d 391 (2010), 11, 12, 14 People v Thomas, 47 NY2d 37 (1979) 13, 14 People v Ventura, 17 NY3d 675 (2011), 18 People v West 100 NY2d 23 (2000), cert denied 540 US 1019(2003).... 18 Roe v Flores-Ortega, 528 US 470. 12 STATUTES 22 NYCRR § 606.5 (b) (1) (1st Dept). 22 NYCRR § 671.4 (a) (1) (2nd Dept), 22 NYCRR § 821.2 (b) (3rd Dept) 22 NYCRR § 1022.11 (b) (4th Dept). . 19 19 19 19 CPL 460.20 (a) (i). 10 CPL 460.20(1) 17 CPL 460.20 (a) (ii) 10 CPL 460.30 (6) (a), 7 CPL 460.30 (6) (b) 7 CPL 470.05 (2), 8 CPLR2013 (b) (2), 10 Penal Law § 400.05 (1) 10 Penal Law § 400.05 (2) 10 Penal Law § 400.05 (3) 10 ii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. JAKIM GRIMES, Defendant-Appellant. APL-2017-00167 Indictment No. 2011-0593-1 Index No. 2011-0696 Appellate Division Docket No. KA 12-01595 RESPONDENT’S BRIEF QUESTIONS PRESENTED 1. IS THE ORDER OF THE APPELLATE DIVISION, FOURTH DEPARTMENT, DENYING DEFENDANT’S CORAM NOBIS MOTION, APPEALABLE TO THIS COURT? The Appellate Division, Fourth Department, denied defendant’s motion without stating in its Order that its determination was on the law alone. 2. DID THE APPELLATE DIVISION, FOURTH DEPARTMENT, ERR AS A MATTER OF LAW WHEN IT DENIED DEFENDANT’S MOTION FOR A WRIT OF ERROR CORAM NOBIS SEEKING TO EXTEND THE TIME TO FILE AN APPLICATION FOR PERMISSION TO APPEAL TO THE COURT OF APPEALS FROM A MEMORANDUM AND ORDER l OF THE APPELLATE DIVISION THAT AFFIRMED DEFENDANT’S CONVICTION? The Appellate Division, Fourth Department, denied defendant’s motion. 3. DID DEFENDANT EXERCISE DUE DILIGENCE WHEN HE MADE A CORAM NOBIS MOTION ASKING THE APPELLATE DIVISION, FOURTH DEPARTMENT, TO EXTEND THE TIME FOR HIM TO MAKE AN APPLICATION FOR PERMISSION TO APPEAL TO THE COURT OF APPEALS? The Appellate Division, Fourth Department, denied defendant’s motion. PRELIMINARY STATEMENT The People file this brief in response to the brief of Jakim Grimes (defendant), who appeals from an Order of the Appellate Division, Fourth Department, dated March 24, 2017, denying defendant’s January 20, 2017 motion for a writ of error coram nobis (Record on Appeal [R.] at 4; People v Grimes, 148 AD3d 1724 [4th Dept 2017]). Defendant’s coram nobis motion asked the Appellate Division to extend the time for defendant to make an application for permission to appeal to the Court of Appeals from the Appellate Division’s November 13, 2015 Memorandum and Order unanimously affirming his March 2, 2012 conviction in Supreme Court, Onondaga County (Brunetti, Acting Justice) of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree (R. 6-7; People v Grimes, 133 AD3d 1201 [2015]). 2 Associate Court of Appeals Judge Rowan D. Wilson granted defendant’s application for permission to appeal on August 17, 2017 (R. 3; People v Grimes, 29 NY3d 1127 [2017]). The People received three copies of defendant’s brief and the Record on Appeal on December 20, 2017. Defendant was released to parole supervision on November 23, 2016 (DIN 12-B-0691), but was returned to prison on October 30, 2017 (DIN 17-B-065; see http://nysdoccslookup.doccs.ny.gov/). He is currently incarcerated at Mohawk Correctional Facility. STATEMENT OF FACTS On March 2, 2012, defendant was convicted in Supreme Court, Onondaga County, after pleading guilty to criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. The charges arose from a traffic stop where police detected the odor of marihuana from the vehicle and a search of defendant, who was a passenger in the vehicle, resulted in the police finding narcotics (R. 6). Attorney Philip Rothschild of the Frank H. Hiscock Legal Aid Society brought an appeal on defendant’s behalf to the Appellate Division, Fourth Department. That Court unanimously affirmed defendant’s conviction. The Appellate Division rejected defendant’s claim that the police did not have probable cause to stop the vehicle that defendant was riding in, citing the failure of the 3 driver to signal when pulling the car into traffic from a parked position (R. 6). The Appellate Division also rejected defendant’s claim that the police lacked probable cause to search defendant, relying on the testimony that an officer trained and experienced in the recognition of the odor of marihuana detected that odor coming from the vehicle (R. 6-7). The Court also rejected defendant’s claim that the odor of unbumt marihuana could not be a basis for the search. The Court found defendant’s claim that the police tailored their testimony to show that there was probable cause to stop the vehicle both unpreserved and meritless (R. 7). The Court also rejected defendant’s challenge to the trial-level court’s finding that defendant had a prior felony conviction, finding that contention unpreserved, that defendant waived strict compliance with the procedures for finding him a repeat felon under CPL 400.21 when defendant admitted in open court at the time of his guilty plea that he had a prior felony conviction, and that the trial-level court substantially complied with CPL 400.21 (R. 7). The People’s Notice of Entry of the Appellate Division’s Order, dated November 17, 2015, was received by the Frank H. Hiscock Legal Aid Society on November 19, 2015 (R. 20). On the next day, November 20, 2015, Attorney Rothschild wrote to defendant, informing him that he was “in the process of drafting the leave application to the court of appeals” and that defendant “should receive it shortly” (R. 26). 4 Also on November 20, 2015, Attorney Rothschild drafted a letter addressed to this Court seeking permission to appeal to this Court from the Appellate Division’s ruling (R. 21-25). The letter included an argument that the trial-level court should not have credited police testimony about the reason for the traffic stop in this case because the same court had rejected testimony about the reason for a traffic stop 254 months earlier (R. 22). In the letter, Attorney Rothschild characterized the police testimony about the odor of marihuana as “nebulous” and argued that the Court should address whether claims of smelling marihuana justify a search (R. 22-23). The letter also raised the issue of whether there was compliance with CPL 400.21 (R. 24-25). This letter, however, was not sent to this Court when it was written “due to law office failure and [Attorney Rothschild’s] lack oversight” (R. 11). Defendant was released from prison to parole supervision on November 23, 2016. On January 9, 2017, Attorney Rothschild received a letter from defendant inquiring about the application for permission to appeal (R. 11). Realizing that the application had not been sent to this Court, Attorney Rothschild made a motion to the Appellate Division, Fourth Department, asking that Court to extend the time to file a leave application. That motion was dated January 20, 2017 and made returnable on February 6, 2017 (R. 9). In his affirmation in support of that motion, 5 Attorney Rothschild contended that there was no time limit for bringing a motion for coram nobis relief (R. 12). The Appellate Division, Fourth Department denied the coram nobis motion on March 24, 2017 (R. 4). Judge Wilson granted defendant permission to appeal to this Court from that denial on August 17, 2017. POINT I THE ORDER OF THE APPELLATE DIVISION DENYING DEFENDANT’S APPLICATION TO MAKE A LATE CRIMINAL LEAVE APPLICATION IS NOT APPEALABLE TO THIS COURT Defendant is asking in this appeal that this Court extend the time for him to make a Criminal Leave Application (CLA) where he failed to file a CLA within 30 days of receiving notice of entry of the Appellate Division's Memorandum and Order and failed to move to extend the time to make a CLA within one year of the expiration of the time to make a timely CLA. Had defendant made a motion to the Appellate Division to extend the time to make a CLA within the one-year “grace period” afforded in CPL 460.30 (1), and had that application been denied, that denial would have been appealable to this Court under CPL 460.30 (6) if two criteria were satisfied: first, that the order of the Appellate Division stated that the denial of the motion was solely on the law, and second, that a Judge of this Court issued a certificate granting permission to 6 this Court (see CPL 460.30 [6] [a] and [b]). Here, while defendant has met the second of those requirements, he has not met the first. The March 24, 2017 Order of the Appellate Division, Fourth Department does not state that the determination of that Court was on the law alone (see R. 4). While it is true that defendant is not seeking relief under CPL 460.10 - indeed, he is no longer eligible for that relief - a defendant’s delay should not entitle that defendant to greater relief than would have been available had that defendant acted in a more timely manner. Nor should a defendant be able to avoid a statutory requirement as a result of delay. Thus, this Court should apply the requirement found in CPL 460.30 (6) (a) to this case and rule that the Appellate Division’s denial of defendant’s coram nobis application is not appealable to this Court. POINT II THE APPELLATE DIVISION DID NOT ERR AS A MATTER OF LAW WHEN IT DENIED DEFENDANT’S CORAM NOBIS MOTION Defendant asks this Court to find that the Appellate Division, Fourth Department, erred as a matter of law when it denied defendant’s coram nobis motion. This Court should find that the Appellate Division, Fourth Department did not err as a matter of law in denying defendant’s motion for a writ of error coram nobis to extend the time to seek permission to appeal to this Court. 7 In Point I of his brief (at 6-11) and also in Point II of his brief (at 12-15) defendant asks this Court to hold, for the first time, that his attorney’s failure to file a timely criminal leave application deprived defendant of his right to effective assistance of counsel under the New York State Constitution. This Court should not make that finding. As defendant acknowledges, this Court has never held that the New York State Constitution’s right to counsel provision extends to the filing of a criminal leave application. This Court should find that the Appellate Division, Fourth Department, did not err as a matter of law when it denied defendant’s coram nobis application. Defendant did not contend in his coram nobis motion, and thus did not preserve for this Court’s review, a claim that CPL 460.30 (1) is constitutionally deficient in providing defendants with the opportunity to seek to extend the time to make a CLA (see CPL 470.05 [2]). Even if this Court reviews defendant’s claim, it should not now extend the time for him to make a CLA. A. Criminal Procedure Law Section 460.30 (1) adequately provides defendants a chance to ask to extend the time to apply for leave to appeal to the Court of Appeals. This Court should decline defendant’s invitation to expand New York’s right to counsel to permit coram nobis relief where a defendant fails to make a timely application to extend the time to seek leave to appeal. Criminal Procedure Law 8 Section 460.30 properly balances the need for finality against the desire to give criminal defendants some opportunity to extend the time to seek leave to appeal. Here is the text of CPL 460.30 (1), with applicable portions in bold print: “Upon motion to an intermediate appellate court of a defendant who desires to take an appeal to such court from a judgment, sentence or order of a criminal court but has failed to file a notice of appeal, an application for leave to appeal, or, as the case may be, an affidavit of errors, with such criminal court within the prescribed period, or upon motion to the court of appeals of a defendant who desires to take an appeal to such court from an order of a superior court or of an intermediate appellate court, but has failed to make an application for a certificate granting leave to appeal to the court of appeals, or has failed to file a notice of appeal with the intermediate appellate court, within the prescribed period, such intermediate appellate court or the court of appeals, as the case may be, may order that the time for the taking of such appeal or applying for leave to appeal be extended to a date not more than thirty days subsequent to the determination of such motion, upon the ground that the failure to so file or make application in timely fashion resulted from (a) improper conduct of a public servant or improper conduct, death or disability of the defendant’s attorney, or (b) inability of the defendant and his attorney to have communicated, in person or by mail, concerning whether an appeal should be taken, prior to the expiration of the time within which to take an appeal due to defendant’s incarceration in an institution and through no lack of due diligence or fault of the attorney or defendant. Such motion must be made with due diligence after the time for the taking of such appeal has expired, and in any case not more than one year thereafter.”1 1 The wording of CPL 460.30 ( 1) appears to direct that a defendant must apply to the Court of Appeals - not the Appellate Division-when making an application for permission to extend the time to make a leave application from an Appellate Division Order. By extension, if this Court rejects the People’s arguments and now expands coram nobis relief to the situation in this case where the motion to extend the time is made more than a year after the time to file a timely leave application has passed, the application, it would seem, would have to be made to the Court of Appeals, not the Appellate Division, as was done here. It does not appear that that the Appellate Division, Fourth Department considered this aspect of the application, since it denied defendant’s coram nobis application (R. 4). Had the Appellate Division concluded that the application had been made in the wrong court, it might have dismissed the application rather than denying it. Where a CPL 460.30 (1) application is granted, CPL 460.20 (2) (a) (i) and (ii) provides that a defendant can then make a Criminal Leave Application seeking permission to appeal to 9 Thus, here, defendant had 30 days from service of the notice of entry on November 17, 2015, plus five additional days because counsel was served by mail ( see CPLR 2013 [b] [2]), to file a timely CLA under CPL 460.10 (5) (a), and a year after that, to December 22, 2016, to seek to extend the time under CPL 460.30 (1) to bring a CLA. About one month after the end of the one-year grace period, defendant made his coram nobis motion. There are important benefits to having and enforcing a rule that sets a firm date for the end of a defendant’s direct appeal. For example, courts, police and prosecutors need to know how long to retain evidence and when to authorize the destruction of contraband or weapons deemed a nuisance (see Penal Law 400.05 [1], [2], [3}). Also, crime victims should be able to rely on the finality of a conviction, at least in terms of a direct appeal in New York State courts. And the courts of this State should not have to engage in the examination of an unknown and possibly very large number of applications without any time limit. Nor should the courts have to confront the possible re-litigation of criminal cases that by statute were completed long ago. The Legislature has given defendant’s adequate protection by providing in CPL 460.30 (1) a maximum of one year for a late leave application. This Court the Court of Appeals by bring that application either the Court of Appeals or to any justice of the department of the Appellate Division where the case was decided (see CPL 460.20 [2] [a] [i], [ii]). 10 should not, under the New York State Constitution, expand the time to seek permission to exercise this statutory right. B. This Court should not grant defendants a right under the New York State Constitution to an infinite ability to seek permission to extend the time to ask to take an appeal to this Court. Defendant in his brief (at 15) asks this Court to make a “narrow” rule excusing a failure to comply with CPL 460.30. And it is true that in this particular case, defendant brought a coram nobis motion approximately one month after the one-year grace period found in CPL 460.30 (1) expired. But to permit, as a matter of New York State constitutional interpretation, this defendant to file a leave application in this instance would virtually eliminate the existing statute. This Court should decline to do so. The facts presented in defendant’s situation differ significantly from cases where attorneys fail to file the initial notice of appeal necessary to take the constitutionally guaranteed initial, as-of-right appeal. This Court created a narrow exception to CPL 460.30 (1) when it decided People v Svville (15 NY3d 391 [2010]). That case, however, involved a failure to comply with the part of CPL 460.30 (1) dealing with applications to extend the time to take a direct appeal to the Appellate Division. This Court decided that coram nobis relief was available to enable the two defendants, Nathaniel Syville and Tony Council, to ask to extend the time to take an appeal despite failing to move for relief within the one-year period because their attorneys did not comply with their requests to file notices of appeal. This Court acknowledged in Swille that defendants do not have a federal constitutional right to an appeal, but where a state creates a right to a direct appeal, as New York does, a defendant has a right to effective counsel for that first appeal (People v Swille, 15 NY3d at 397, citing Evitts v Lucev, 469 US 387, 393, 396 [1985]). And under the Due Process Clause of the Federal Constitution an attorney who fails to comply with a defendant’s timely request that the attorney complete the ministerial task of filing a notice of appeal has failed to provide effective assistance of counsel (icL at 397-398, citing Roe v Flores-Ortega, 528 US 470, 477, 484-485 and Evitts v Lucey, 469 US at 400). This Court determined in Syville (at 398) that filing an application for a writ of error coram nobis was the proper vehicle for relief in this situation as an exception to the time limit contained in CPL 460.30 (1). Before the enactment of the Criminal Procedure Law, defendants who lost the right to appeal as the result of an attorney’s failure could apply for coram nobis relief in what was known as a “Montgomery claim,” based on People v Montgomery (24 NY2d 130 [1969]) (discussed in Syville at 398-399). While the “Montgomery claim” was superceded in most instances by the adoption of the Criminal Procedure Law, this Court created an exception to CPL 12 460.30 (1) in People v Thomas (47 NY2d 37 [1979]) (discussed in Svville at 399). In that case, the prosecutor’s office failed to respond to inquiries by the Appellate Division, Fourth Department, as to when a notice of appeal had been filed. It was not until 18 months after appellate counsel had been assigned and defendant himself made a pro se motion in the Appellate Division for reversal of his conviction that the prosecutor revealed that no notice of appeal had been filed in the case, resulting in the dismissal of the appeal (People v Thomas, 47 NY2d at 40- 41). The defendant then brought a CPL 460.30 motion, which the Appellate Division dismissed as untimely (id. at 42). This Court ruled that under these circumstances, the prosecutor was estopped from relying on the untimeliness of the application to defeat the CPL 460.30 application, and remanded the case to the Appellate Division for consideration of the merits of the motion (id. at 44-45). But even as this Court granted relief (and expressed a high level of distain for the prosecutor’s “egregious silence”) in Thomas, this Court concurred with the prosecutor’s characterization of the one-year time limit on this relief as “inflexible,” while it rejected “the conclusion to which it would lead in this case” (id. at 42-43). This Court also indicated that the purpose of the time limit in CPL 460.30 was to eliminate Montgomery claims And this Court favorably cited in Thomas (at 43) its earlier holding in People v Corso (40 NY2d 578, 580 [1976]) that the one-year time limit was unequivocal, writing that “strict construction is 13 appropriate since the time limits within which to appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them” that while extending a one-year (People v Thomas, 47 NY2d at 43 [citations omitted]). After reviewing this case law, this Court found that due process mandated a second exception to CPL 460.30 where a defendant’s counsel fails to comply with a request to file a notice of appeal and a defendant alleges an inability to have v Syville, 15 NY3d at 399-400). This Court decided that the common-law writ of coram nobis provides the procedure for seeking this relief, there being no other available recourse (id. at 400, citing People v Bachert, 69 NY2d 593, 598 [1987]). This Court has rejected efforts to expand the exception to CPL 460.30 (1) recognized in Syville. In People v Andrews (23 NY3d 605 [2014], reargument denied 24 NY3d 937 [2014]), this Court decided appeals brought in separate cases by three defendants. Two of those defendants-Churchill Andrews and Vinod Patel - complained, after the expiration of the one-year grace period, that their attorneys had failed to file notices of appeal in their cases. The third, Kevin Kruger, complained, also after the one-year grace period, that his attorney had agreed to file a CLA with this court from the affirmation of Kruger’s conviction by 14 the Appellate Division, but failed to file the CLA (id. at 612-613). The analysis and resolution of Kruger’s case has the most relevance to this defendant’s case. This Court pointed out in People v Andrews that a defendant has a right to bring a “first-tier” direct appeal to the Appellate Division from a conviction, while “secondary review is more commonly discretionary (compare CPL 450.90 with CPL 450.70 mid CPL 450.80)” (id. at 610). This Court noted that Kruger’s case was significantly different from the other cases because he sought to file an untimely CLA, which, if granted, would have trigger the exercise of this Court’s discretion to decide whether to permit an appeal. Thus, Kruger’s case did not involve the loss of the right to bring a direct appeal, which is not an appeal brought by permission or after an exercise of discretion, but rather, is brought as a matter of right. Because there is no federal constitutional right to counsel for an application for discretionary review to a state’s highest court, an attorney’s failure to file a CLA does not by itself establish a deprivation of effective assistance of counsel or due process, and “did not implicate the Sixth or Fourteenth Amendments,” although it would affect Kruger’s ability to seek federal habeas corpus review (id. 616, citing O’Sullivan v Boerckel. 526 US 838, 848-849 [1999]). On that basis, this Court denied Kruger’s coram nobis motion. This Court did not decide whether to grant relief to Kruger under the New York State Constitution because 15 Kruger did not ask for it or cite any state laws or regulations supporting independent state grounds (id.). In People v Rosario (26 NY3d 597, 603-604 [2015]) this Court declined to extend the holding of Syville where defendants fail to show an exercise of due diligence during the one-year grace period. This Court also declined to extend the Syville rational to the situation in People v Ariune (30 NY3d 347 [2017]). In that case, the defendant failed to satisfy his burden of showing in his coram nobis motion that his attorney failed to consult with him about his appeal and failed to assist him in obtaining poor person relief (id at_,* 9-10). Defendant now asks this Court to do what it refused to do in People v Andrews, People v Rosario and People v Ariune- expand the narrow holding of People v Syville. And while defendant, unlike defendant Kruger in the Andrews case, now asks for relief under the New York State Constitution, like Kruger, he does not cite any state laws or regulations that support this expansion of the protections afforded as a matter of New York State Constitutional law. Rather, he appears to rely on the fact that this Court has afforded greater protections to defendants under the New York State Constitution in other settings. But that does not mean that an expansion of state constitutional rights is warranted here. 16 A key difference between Syville and the situation presented here and in Kruger’s case is that Syville involved the ability of a defendant to bring an initial appeal, while this case, like Kruger’s case, involves the ability to ask permission to obtain discretionary review of a ruling made in an initial appeal. Each has an important place in New York’s procedures for reviewing criminal cases (see People v Andrews, 23 NY3d at 618, citing Evitts v Lucey, 469 US at 393 [Rivera, J., dissent]). But a failure to file a notice of appeal or make a timely CPL 460.30 (1) application to extend the time to take an appeal, as happened in Syville. results in a total loss of the ability to obtain any appellate review if not for coram nobis relief. This results in both a statutory and constitutional deprivation, since the statutory right to appeal “triggers a guarantee of effective legal assistance” and a failure to file a notice of appeal “results in a deprivation of due process of law” (People v Andrews. 23 NY3d at 610 (citations omitted). Conversely, a defendant has no right to bring an appeal to this Court from the ruling of an intermediate appellate court. This second level of review is discretionary, limited to cases where either a Judge of this Court or a Justice of the Appellate Division in the Department where the initial appeal was decided “certifies that the case involves a question of law which ought to be reviewed by the [C]ourt of [A]ppeals” (CPL 460.20 [1]). This is a statutory, not a constitutional right. The New York State Constitution should not be interpreted as expanding the 17 reach of due process and the right to counsel to include the statutory right to seek permission to appeal under CPL 460.20 (1). This Court has repeatedly held that defendants do not have a constitutional entitlement to have counsel appointed to assist them in applying for poor person status on appeal (see People v Ariune. 30 NY3d 347 at , *3; People v Perez, 23 NY3d 89, 99 [2014]; People v West. 100 NY2d 23, 28 [2000], cert denied 540 US 1019 [2003]). This Court should similarly find no constitutional violation in this case. Indeed, this Court itself has recognized the importance of the initial appellate review conducted by the Appellate Division, with its broad authority to engage in fact finding and review unpreserved claims in the interest of justice, as compared to the “avenues of appeal to this Court [which] are limited and its purview strictly prescribed” (People v Ventura. 17 NY3d 675, 681 [2011]). Defendant does not cite any court rule or Bar Association standard that discusses counsel’s failure to file a CLA. Defendant does cite in his brief (at 12) the New York State Court of Appeals Criminal Leave Application Practice Outline, prepared by this Court’s Clerk’s Office in February 2017. As pointed out in that outline, the rules of each of the Departments of the Appellate Division require that counsel, when a conviction is affirmed on appeal, to notify the defendant of the right to seek this Court’s review and to prepare the CLA if 18 defendant requests that the attorney do so (see 22 NYCRR Section 606.5 [b] [1] [1st Dept]; 22 NYCRR Section 671.4 [a] [1] [2nd Dept]; 22 NYCRR Section 821.2 [b] [3rd Dept]; 22 NYCRR Section 1022.11 [b] [4th Dept]). The existence of a court rule, however, does not mean that the failure to file a CLA should be equated :with a violation of due process under the New York State Constitution. This Court recognized the authority of an intermediate appellate court to grant coram nobis relief and allow a defendant to bring a new appeal on the basis of ineffective assistance of appellate counsel in People v Bachert (69 NY2d at 595- 596). In 2002, the Legislature amended CPL 450.90 (1) to permit this Court to review decisions of intermediate appellate courts granting or denying coram nobis relief (see L 2002, ch 498; People v Jones. 100 NY2d 606, 607-608 [2003]). But the Legislature has not given defendants an indefinite time period to ask to extend the time to take an appeal. Neither should this Court. C. Defendant received effective appellate representation in this case. Defendant received effective appellate representation in the Appellate Division, Fourth Department from his assigned appellate counsel. Appellate counsel raised arguments concerning both the conviction and the sentence in defendant’s case. While the Appellate Division rejected those arguments, that does 2 As pointed out in Senior Associate Judge Rivera’s dissent in People v Ariune (30 NY3d 347 , _ *13), both the Appellate Division, Second Department (22 NYCRR 671.3 [b] [4]), and the Appellate Division, Fourth Department (22 NYCRR 1015.7 [a]), by rule, require that counsel submit a poor person application where a defendant requests one- but the majority found in that case no constitutional violation where counsel allegedly did not assist in the preparation of a poor person application (id. at _, * 9). 19 not mean that appellate counsel was ineffective (see People v Stultz, 2 NY3d 277, 285 [2004] [holding that “[a]ppellate advocacy is meaningful if it reflects a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument”]). In this case, the Appellate Division was “eminently suited to evaluate appellate counsel’s product” (id. at 284). The Appellate Division may have concluded that counsel’s overall performance, including counsel’s brief and counsel’s oral argument before that Court, constituted meaningful assistance despite the failure to file a timely CLA. Appellate counsel, or his office, as counsel admitted, made a mistake in failing to send to this Court the leave application that he promptly prepared. But the mistake was not based on a failure to grasp appellate procedure. Indeed, counsel had every intention of filing a timely CLA in accordance with routine appellate procedure. While it is true that a single error can result in a finding of ineffective assistance (see People v Borrelh 12 NY3d 365, 368 [2009]), that is not usually the case, and it is not the case here. As a result of appellate counsel’s mistake, defendant lost the opportunity to seek permission to take a further appeal in a case where the Appellate Division may have concluded the likelihood of receiving permission to appeal was remote, and of receiving any relief had leave been granted was also remote. Appellate counsel certainly intended to make the application and was familiar with the procedure for doing so. But this was not a 20 case where the Appellate Division would have concluded that an important issue of law was presented, and a reasonable appellate attorney could have concluded that a leave application had no reasonable chance of success. After all, the Appellate Division had unanimously affirmed and had found several of counsel’s arguments unpreserved. This Court should find that the New York State Constitution does not extend to this situation, and that even if it did, defendant received meaningful appellate representation in this case. POINT III DEFENDANT FAILED TO EXERCISE DUE DILIGENCE IN MAKING HIS CORAM NOBIS MOTION Defendant claims in Point III of his brief (at 15-19) that he exercised the required due diligence necessary for coram nobis relief. If this Court reaches this issue, it should reject defendant’s argument because defendant failed to exercise due diligence to pursue his ability to ask for permission to appeal to this Court. As a threshold matter, this Court could find that given defendant’s lack of due diligence, it should not review the issue discussed in Point II of this brief (supra) of whether a defendant should be permitted as a matter of New York State Constitutional law to make a CLA beyond the statutorily permissible time. In any event, this Court should not grant defendant any relief in light of his failure to exercise due diligence. 21 Defendants must show that they exercised due diligence “in order to obtain the exceptional relief beyond the time permitted under CPL 460.30” (People v Rosario, 26 NY3d 597, 604 [2015] [denying Syville relief where the defendants made no showing that they took any steps to have their attorneys file notices of appeal and did not explain why they waited years to seek coram nobis relief]). Here, defendant exercised no diligence during the one-year grace period provided in CPL 460.30(1) to make sure that counsel filed a Criminal Leave Application on his behalf. The Appellate Division affirmed defendant’s conviction on November 13, 2015 (R. 6-7). Appellate counsel received the People’s Notice of Entry on November 19, 2015 (R. 20). The next day, November 20, 2015, counsel drafted the leave application that inadvertently was not sent to this Court or the People (R. 21-25). But also on November 20, 2015, counsel sent defendant a letter indicating that counsel “was in the process of drafting the leave application to the court of appeals and you should receive it shortly” (R. 26). Defendant remained in prison for another year, getting released to parole supervision on November 23, 2016. Defendant could have written to counsel during that year. And could have gone to see counsel upon defendant’s release from prison. Had he done so promptly, counsel would have had nearly a month to make a CPL 460.30 (1) application. But it was not until January 9, 2017, that defendant sent a letter to counsel asking about the status of the leave application (R. 11). Thus, despite 22 being put on notice in November 2015 by his attorney to expect a copy of the CLA shortly, he made no inquiry of counsel about this until January 9, 2017. Given this inactivity by defendant, this Court should find that defendant failed to exercise due diligence in preserving his ability to seek permission to appeal to this Court. CONCLUSION The People respectfully ask that this Court not extend the time to permit defendant to make a Criminal Leave Application. Respectfully submitted, WILLIAM J. FITZPATRICK, ESQ. Onondaga County District Attorney By: /JAMES p. MAXWELL, ESQ. Chief Assistant District Attorney Attorney for Respondent Criminal Courthouse, 4th Floor 505 South State Street Syracuse, NY 13202 Tel: (315)435-2470 JAMES P. MAXWELL, ESQ. Chief Assistant District Attorney Of Counsel DATED: January 30, 2018 23 WORD COUNT I certify that according to the word processing program on my computer this brief has 5,774 words. . ■�2. f . ■fy� JAMES P. MAXWELL 24