The People, Respondent,v.Jakim Grimes, Appellant.BriefN.Y.September 13, 2018To be Argued by: JOSEPH PERRY (Time Requested: 15 Minutes) APL-2017-00167 Appellate Division–Fourth Department Docket No. KA 12-01595 Supreme Court, Onondaga County Indictment No. 2011-0593-1 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – JAKIM GRIMES, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT BAKER BOTTS L.L.P. Attorneys for Defendant-Appellant 30 Rockefeller Plaza New York, New York 10112 Tel.: (212) 408-2500 Fax: (212) 408-2501 Date Completed: December 19, 2017 i TABLE OF CONTENTS Page QUESTION PRESENTED ........................................................................................ 1 JURISDICTIONAL STATEMENT .......................................................................... 1 SUMMARY OF ARGUMENT ................................................................................. 2 STATEMENT OF FACTS ........................................................................................ 3 ARGUMENT ............................................................................................................. 6 I. The Right to the Effective Assistance of Appellate Counsel is Guaranteed by the New York State Constitution ................................................................ 6 II. The Failure to File a CLA for Discretionary Permission to Appeal Deprives a Defendant of the Effective Assistance of Counsel as a Matter of New York State Constitutional Law .........................................................12 III. Mr. Grimes Exercised the Requisite Due Diligence Warranting Coram Nobis Relief ...................................................................................................15 CONCLUSION ........................................................................................................19 ii TABLE OF AUTHORITIES Page(s) CASES Baldwin v Reese, 541 US 27 [2004] ................................................................................................ 14 Evitts v Lucey, 469 US 387 [1985] .............................................................................................. 10 Halbert v Michigan, 545 US 605 [2005] .......................................................................................... 2, 11 Hernandez v Greiner, 414 F3d 266 [2d Cir 2005] ............................................................................. 2, 11 O’Sullivan v Boerckel, 526 US 838 [1999] .............................................................................................. 14 Oregon v Hass, 420 US 714 [1975] .............................................................................................. 15 People v Andrews, 23 NY3d 605 [2014] ....................................................................................passim People v Arjune, -- NY3d --, NY Slip Op 08159 [2017] ......................................................... 10, 17 People v Baldi, 54 NY2d 137 [1981] ......................................................................................... 7, 8 People v Benevento, 91 NY2d 708 [1998] ......................................................................................... 8, 9 People v Borrell, 12 NY3d 365 [2009] ................................................................................. 9, 13, 14 People v Caban, 5 NY3d 143 [2005] ..................................................................................... 3, 8, 15 People v Claudio, 59 NY2d 556 [1983] ............................................................................................. 7 iii People v Ford, 86 NY2d 397 [1995] ............................................................................................. 8 People v Grice, 100 NY2d 318 [2003] ........................................................................................... 7 People v Grimes, 133 AD3d 1201 [4th Dept 2015] .......................................................................... 4 People v Grimes, 148 AD3d 1724 [4th Dept 2017] .......................................................................... 6 People v Harris, 77 NY2d 434 [1991] ......................................................................................... 6, 7 People v Henry, 95 NY2d 563 [2000] ............................................................................................. 8 People v Honghirun, 29 NY3d 284 [2017] ................................................................................... 3, 8, 15 People v Isaacson, 44 NY2d 511 [1978] ..................................................................................... 14, 15 People v Lopez, 16 NY3d 375 [2011] ............................................................................................. 6 People v Pavone, 26 NY3d 629 [2015] ....................................................................................... 7, 15 People v Rosario, 26 NY3d 597 [2015] ......................................................................... 10, 16, 17, 18 People v Satterfield, 66 NY2d 796 [1985] ....................................................................................... 7, 13 People v Settles, 46 NY2d 154 [1978] ........................................................................................... 14 People v Stevens, 91 NY2d 270 [1998] ........................................................................................... 12 iv People v Stultz, 2 NY3d 277 [2004] ........................................................................... 2, 8, 9, 13, 14 People v Syville, 15 NY3d 391 [2010] ........................................................................... 9, 10, 11, 14 People v Townsley, 20 NY3d 294 [2012] ............................................................................................. 1 Roe v Flores-Ortega, 528 US 470 [2000] .............................................................................................. 10 Ross v Moffitt, 417 US 600 [1974] .......................................................................................... 2, 11 Strickland v Washington 466 US 668 [1984] ............................................................................................ 7, 8 STATUTES CPL 400.21 ................................................................................................................ 4 CPL 450.90 ................................................................................................................ 1 CPL 460.10 [1], [5] .................................................................................................. 12 CPL 460.30 .......................................................................................................passim CPL 470.35 [1] ....................................................................................... 12, 13, 14, 16 Penal Law § 220.09 [1] .............................................................................................. 3 Penal Law § 220.16 [1] .............................................................................................. 3 OTHER AUTHORITIES 22 NYCRR § 500.20 [a] .......................................................................................... 14 NY Const, art I, § 6 ........................................................................................ 2, 12, 14 US Const Amend VI .................................................................................................. 2 1 QUESTION PRESENTED QUESTION: Did the Appellate Division err as a matter of law by denying appellant Jakim Grimes coram nobis relief where Mr. Grimes established that appellate counsel provided ineffective assistance of counsel under the New York State constitution by failing to file a criminal leave application for discretionary review of his underlying conviction with this Court? ANSWER: Yes. JURISDICTIONAL STATEMENT This appeal arises from the Appellate Division, Fourth Department’s Order, dated March 24, 2017, denying appellant Jakim Grimes’ writ of error coram nobis for leave to file a late application for leave to appeal to this Court (R-4).1 The Court has jurisdiction to hear an appeal of the Fourth Department’s denial of Mr. Grimes’ writ of error coram nobis pursuant to CPL 450.90 (see also People v Andrews, 23 NY3d 605, 613 [2014] [denial of coram nobis motion by the Appellate Division subject to review by the Court of Appeals]; People v Townsley, 20 NY3d 294, 298 [2012]). On August 17, 2017, the Honorable Rowan D. Wilson, Associate Judge of this Court, granted Mr. Grimes’ application for leave to appeal (R-3). 1 As used herein, numbers in parentheses following the letter “R-” refer to the pages in Mr. Grimes’ Record on Appeal. 2 SUMMARY OF ARGUMENT It is a fundamental tenet that “[d]efendants in criminal cases have a constitutional right to effective assistance of counsel” (People v Stultz, 2 NY3d 277, 279 [2004], citing US Const Amend VI; NY Const, art I, § 6). In Andrews, supra, this Court considered whether a defense counsel’s failure to file a criminal leave application (CLA) for discretionary review by this Court constituted ineffective assistance of appellate counsel as a matter of federal constitutional law (see 23 NY3d at 616). Interpreting United States Supreme Court precedent, the Court held that there was no federal “constitutional entitlement to legal representation on a discretionary application for an appeal to a state’s highest court” (id., citing Ross v Moffitt, 417 US 600, 615-616 [1974]; Halbert v Michigan, 545 US 605, 611-612 [2005]; Hernandez v Greiner, 414 F3d 266, 269- 270 [2d Cir 2005]). Andrews, however, expressly left open the question whether the failure to file a CLA constitutes ineffective assistance of appellate counsel as a matter of New York State constitutional law, warranting coram nobis relief (see 23 NY3d at 616). This appeal provides the Court with the opportunity to adopt such a rule, both narrow in scope and limited to situations where, as here, counsel’s error was not reasonably discoverable within the one-year grace period set forth in CPL 460.30 and defendant exercised due diligence in identifying such error. The 3 adoption of such a rule would be consistent with this Court’s longstanding recognition that New York State’s constitutional standard for the effective assistance of counsel “‘offers greater protection than the federal test’” (People v Honghirun, 29 NY3d 284, 289 [2017], quoting People v Caban, 5 NY3d 143, 156 [2005]). STATEMENT OF FACTS Mr. Grimes pleaded guilty to one count of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and one count of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]) on March 2, 2012 (R-6). Supreme Court, Onondaga County, sentenced Mr. Grimes as a predicate felon (R-7). The facts underlying his conviction are as follows: Mr. Grimes was a passenger in a vehicle that was stopped by the police (R-6). The police subsequently searched Mr. Grimes and found narcotics on his person (R-6). On direct appeal, Mr. Grimes challenged his conviction and sentence on several grounds. Mr. Grimes contended that the police lacked probable cause to stop the vehicle in which he was a passenger and further argued that the police did not have probable cause to search his person (R-6). Mr. Grimes also asserted that the police tailored their testimony at the suppression hearing to establish probable 4 cause, rendering the search and seizure illegal (R-7). Finally, Mr. Grimes argued that Supreme Court failed to “make a proper finding of a prior felony conviction pursuant to CPL 400.21 inasmuch as the court failed to ask him whether he wanted to controvert any of the allegations set forth in the CPL 400.21 statement” (R-7). The Appellate Division rejected these arguments and affirmed the judgment on November 13, 2015 (R-6-8); see also People v Grimes, 133 AD3d 1201 [4th Dept 2015]). The People filed a Notice of Entry of the order of the Appellate Division on November 17, 2015, which was received by Mr. Grimes’ then appellate counsel (Prior Counsel) on November 19, 2015 (R-20). By letter dated November 20, 2015, Prior Counsel advised Mr. Grimes, who was incarcerated, that the Appellate Division had affirmed his conviction and that he was in the process of drafting the CLA (R-26). Although Prior Counsel specifically told Mr. Grimes that he would prepare and timely file the requisite CLA, Prior Counsel failed to complete this procedural step (R-11). Mr. Grimes, who had no reason to believe that his CLA was not pending before the Court and had remained incarcerated until November 23, 2016,2 exercised due diligence by inquiring about the status of his CLA via a letter to Prior Counsel dated January 9, 2017 (R-11). Upon receipt of Mr. Grimes’ letter, 2 See http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ2/WINQ120 (Mr. Grimes was released from imprisonment on November 23, 2016) (Dec. 19, 2017). 5 Prior Counsel discovered that the CLA that he had prepared on Mr. Grimes’ behalf (R-21-25) had not been filed with the Court (R-11). The statutory remedy, under CPL 460.30, to cure an untimely CLA filing was not available to Mr. Grimes. CPL 460.30 only permits a defendant to file a motion seeking to extend the time to file a CLA if the motion is made within one year from the date the CLA was due. In this case, Mr. Grimes was statutorily barred from making a CPL 460.30 motion because the one-year grace period allowed under the statute had just expired in December 2016. Thus, on January 20, 2017, Mr. Grimes moved for a writ of error coram nobis in the Appellate Division, seeking leave to file a late application for leave to appeal to this Court (R-9), which the People did not oppose. In his affirmation in support of the coram nobis motion, Prior Counsel indicated that “Mr. Grimes could not reasonably have known that his appellate rights with respect to the judgment of conviction were extinguished,” given that Prior Counsel had affirmatively told Mr. Grimes that the CLA “would be filed on his behalf” (R- 15). Prior Counsel therefore argued that Mr. Grimes’ motion should be granted because Prior Counsel’s failure to timely file the CLA “deprived Mr. Grimes of his Federal and New York State constitutional rights to effective assistance of appellate counsel” (R-11). 6 The Appellate Division denied Mr. Grimes’ coram nobis motion on March 24, 2017, without opinion (R-4; People v Grimes, 148 AD3d 1724 [4th Dept 2017]). This Court granted leave to appeal (R-3; 29 NY3d 1127 [2017]). After the Court granted leave, Mr. Grimes filed a motion seeking the appointment of substitute counsel. The Court granted the motion, relieving Prior Counsel on September 14, 2017 (see Motion No. 2017-929). ARGUMENT MR. GRIMES DID NOT RECEIVE THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL REQUIRED BY THE NEW YORK STATE CONSTITUTION I. The Right to the Effective Assistance of Appellate Counsel is Guaranteed by the New York State Constitution “New York has long viewed the right to counsel as a cherished and valuable protection that must be guarded with the utmost vigilance” (People v Lopez, 16 NY3d 375, 380 [2011], citing People v Harris, 77 NY2d 434, 439 [1991]). The Court has explained: “The safeguards guaranteed by this State’s Right to Counsel Clause are unique. By constitutional and statutory interpretation [the Court] has established a protective body of law in this area resting on concerns of due process, self-incrimination and the right to counsel provisions of the State Constitution which is substantially greater than that recognized by other State jurisdictions and far more expansive than the Federal counterpart. The Court has described the New York rule as a cherished principle, rooted in this State’s pre-revolutionary constitutional law and developed independent of its Federal counterpart . . . 7 Manifestly, protection of the right to counsel has become a matter of singular concern in New York . . . (Harris, 77 NY2d at 439 [internal citations and quotations omitted]). Encompassed within a defendant’s indelible right to counsel under New York State constitutional law is a defendant’s right to effective assistance of counsel (see People v Grice, 100 NY2d 318, 320 [2003] [“(t)he indelible right to counsel arises from the provision of the State Constitution that guarantees due process of law (and) the right to effective assistance of counsel”]; see also People v Claudio, 59 NY2d 556, 561 n 3 [1983]). The standard for effective assistance of counsel under New York law is well familiar. “So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met” (People v Baldi, 54 NY2d 137, 147 [1981]). The lack of meaningful representation is established in “the absence of strategic or other legitimate explanations for counsel’s alleged failure” (People v Pavone, 26 NY3d 629, 646 [2015], citing People v Satterfield, 66 NY2d 796, 799-800 [1985]). A couple of years after the Court articulated the Baldi standard for claims of ineffective assistance, the United States Supreme Court enunciated the Federal standard for ineffective assistance claims in Strickland v Washington (466 US 668 [1984]). To establish that counsel was ineffective under Strickland, a 8 defendant must show that ‘“counsel’s performance was deficient and that the deficiency in performance prejudiced defendant’” (People v Benevento, 91 NY2d 708, 713 [1998], quoting People v Ford, 86 NY2d 397 [1995]). Following the Supreme Court’s decision in Strickland, this Court declined to adopt the Federal standard for ineffective assistance as a matter of State constitutional law (see Caban, 5 NY3d at 155 [“(o)ur state standard of meaningful representation, by contrast, does not require a defendant to ‘fully satisfy the prejudice test of Strickland’”]; Benevento, 91 NY2d at 713 [“Under the State Constitution, “prejudice” is examined more generally in the context of whether defendant received meaningful representation”]). Stated differently, “inadequacy of counsel will still warrant reversal” under New York law even absent a “reasonable probability” that the outcome of the proceeding would be different (see Caban, 5 NY3d at 155-156). Thus in Caban, the Court was explicit: the New York State standard for ineffective assistance of counsel “offers greater protection than the federal test” (5 NY3d at 156 [emphasis added]; see also Honghirun, 29 NY3d at 289). Baldi and the cases that followed thereafter focused on the ineffective assistance of trial counsel (see e.g. People v Henry, 95 NY2d 563 [2000]; Benevento, 91 NY2d at 708). It was not until Stultz that the Court had the occasion to pronounce that the “meaningful representation” standard in Baldi 9 would apply to claims for ineffective assistance of appellate counsel (see 2 NY3d at 284; see also People v Borrell, 12 NY3d 365, 368 [2009]). Commenting on the standard, the Court noted 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” (Stultz, 2 NY3d at 285 [emphasis added]). In recent years, cases involving ineffective assistance of appellate counsel claims have concerned procedural errors by counsel, including the failure to file a timely notice of appeal following a judgment of conviction (see People v Syville, 15 NY3d 391, 394 [2010]) as well as the failure to file a CLA for discretionary appellate review following the affirmance of a conviction with the Appellate Division (see Andrews, 23 NY3d at 613-614). Syville is the seminal case discussing the availability of the writ of error coram nobis in situations where counsel has not filed a timely notice of appeal and the one-year statutory grace period to seek an extension has expired under CPL 460.30 (see 15 NY3d at 399). There, the Court held that a defendant may assert an ineffective assistance of counsel claim, via a coram nobis application in the Appellate Division, “[w]here an attorney has failed to comply with 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” provided for in CPL 460.30 (id. at 399-400 [“CPL 460.30 should not categorically 10 bar an appellate court from considering (a) defendant’s application to pursue an untimely appeal”]). Subsequent to Syville, the Court held that, in order to obtain coram nobis belief, where the one-year grace period under CPL 460.30 has expired, “a defendant must show that he exercised due diligence” (see People v Rosario, 26 NY3d 597, 604 [2015]; see also People v Arjune, -- NY3d --, NY Slip Op 08159 [2017]). The Court predicated its holding in Syville on the Due Process Clause of the Federal Constitution (see 15 NY3d at 397). In States, like New York, where defendants are statutorily entitled to a direct appeal as of right, “[t]he Due Process Clause prohibits a defendant from being denied the right to appeal as a consequence of the violation of another constitutional right—the right to the effective assistance of counsel on direct appeal” (id. at 398; see also Evitts v Lucey, 469 US 387, 399 [1985]). Where appellate counsel fails “to carry out the purely ministerial task . . . to preserve the right to appellate review,” counsel’s performance is ineffective (Syville, 15 NY3d at 397; see also Roe v Flores-Ortega, 528 US 470, 477 [2000]). Accordingly, “to establish a constitutional violation in this context,” a “defendant need only demonstrate that, as a result of counsel’s deficient performance, appellate rights were extinguished” (Syville, 15 NY3d at 398). 11 In Andrews, defendant Kruger sought coram nobis relief pursuant to Syville because his counsel, following the affirmance of his conviction by the Appellate Division, failed to file a CLA for discretionary permission to appeal to this Court (see 23 NY3d at 613). In denying Kruger relief, the Court distinguished the rule enunciated in Syville, holding that “[u]nlike an appeal as of right, however, there is no federal constitutional entitlement to legal representation on a discretionary application for an appeal to a state’s highest court” (id. at 616, citing Ross, 417 at 615-616; Halbert, 545 US at 611-612; Hernandez, 414 F3d at 269- 270). The Court went on to state that, consequently, “the failure to file a CLA, standing alone, does not necessarily establish that [a defendant] was deprived of effective assistance of counsel or due process of law” under the Federal constitution (Andrews, 23 NY3d at 616). The Court in Andrews declined to consider and expressly left open the question whether the failure to file a CLA for discretionary permission to appeal deprives a defendant of effective assistance of counsel under the New York State Constitution (see 23 NY3d at 616). This appeal presents the Court with the opportunity to answer this question, preserved for review in Mr. Grimes’ moving papers in the proceeding below (R-12-16), in the affirmative. 12 II. The Failure to File a CLA for Discretionary Permission to Appeal Deprives a Defendant of the Effective Assistance of Counsel as a Matter of New York State Constitutional Law In New York, the right to appeal a criminal conviction is codified by statute (see People v Stevens, 91 NY2d 270, 277 [1998]). The CPL, in the vast majority of cases, vests a defendant with two critical appellate rights: an appeal as of right to an intermediate appellate court (see CPL 460.10[1]) and the right to apply for a CLA to this Court (see CPL 460.10[5]). Once the Legislature undertakes to provide these rights by statute, the New York State constitution requires that defendants not be denied these essential rights in the criminal appellate process without due process of law (see NY Const, art I, § 6). Both the loss of the statutory right to a first tier appeal or the right to apply for a CLA, where the loss results from counsel’s ineffective assistance, amount equally to a denial of defendant’s New York State constitutional guarantee of due process (see id.). The failure to file a CLA within 30 days from the date an unfavorable intermediary appellate court order is served on a defendant extinguishes the right to seek further review by this Court (see CPL 460.10[5]).3 The forfeiture of that right is significant. CPL 470.35(1) empowers this Court to “consider and 3 See also The New York State Court of Appeals, Criminal Practice Outline, https://www.nycourts.gov/ctapps/forms/claoutline.pdf, at p. 7 (“A criminal leave application must be made within 30 days after service upon the appellant of a copy of the order sought to be appealed”) (Dec. 19, 2017). 13 determine not only questions of law which were raised or considered [by the intermediary appellate court], but also any question of law involving alleged error or defect in the [original] criminal court proceedings . . . regardless of whether such question was raised, considered or determined upon the appeal to the intermediate appellate court.” Where counsel’s inaction extinguishes an appellate right that a defendant wishes to pursue, that inaction deprives a defendant of the meaningful appellate representation guaranteed by New York State law (see Stultz, 2 NY3d at 284). As this Court observed in Borrell, “[t]he essential inquiry in assessing the constitutional adequacy of appellate representation is, then, not whether a better result might have been achieved, but whether, viewed objectively, counsel’s actions are consistent with those of a reasonably competent appellate attorney” (12 NY3d at 368, citing Satterfield, 66 NY2d at 799). In the context of this appeal, the failure to file a CLA, “viewed objectively,” reflects incompetence on the part of an appellate attorney (id.; see also Stultz, 2 NY3d at 285 [appellate advocacy not meaningful where appellate counsel fails to “grasp . . . appellate procedure”]).4 4 Under the Court’s rules, it is not burdensome to preserve a defendant’s right to seek further appellate review. To confer jurisdiction to the Court, counsel simply must submit a letter to the Chief Judge indicating, inter alia, the grounds upon which leave is sought. Notably, once an application is assigned to a Judge for review, “counsel will [then] be given an opportunity to serve and file additional submissions” further explaining the reasons why leave should be granted (see Rules of Ct of Appeals [22 NYCRR] § 500.20 [a]). 14 This Court, in articulating the standard for the effective assistance of appellate counsel as a matter of state constitutional law, has never distinguished between a defendant’s right to effective assistance at the intermediary appellate court stage versus a defendant’s right to effective assistance before this Court (see generally People v Settles, 46 NY2d 154, 165 [1978] [“(a) defendant is entitled to the (effective) assistance of an attorney at any critical stage of the prosecution”]).5 Nor should the Court do so here. Rather, the Court should find that, “[w]hen counsel’s omission causes a defendant to lose the right to” seek review of his conviction from this Court, statutorily guaranteed by the CPL, “the deficient performance amounts to ineffective assistance of counsel in violation of” the New York State Constitution’s due process clause (Syville, 15 NY3d at 397; NY Const, art I, § 6). That the Court in Andrews concluded that the failure to file a CLA does not deprive a defendant of “effective assistance of counsel or due process of law” under the Federal Constitution does not require the same result in this case (23 NY3d at 616). Indeed, it is axiomatic that “under our own State due process clause, this court may impose higher standards than those held to be necessary by 5 Seeking the right to appeal before this Court is a critical stage of a criminal proceeding not only because it provides a defendant with the opportunity to assert important “questions of law” and “legal error[s] and defect[s]” in the proceedings below (CPL 470.35[1]), but because it is a necessary pre-requisite for federal habeas corpus review (see Andrews, 23 NY3d at 616, citing O’Sullivan v Boerckel, 526 US 838, 848-849 [1999]; see also Baldwin v Reese, 541 US 27, 29 [2004] [“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies”]). 15 the Supreme Court under the corresponding Federal constitutional provision” (People v Isaacson, 44 NY2d 511, 519 [1978] [internal citation omitted], citing Oregon v Hass, 420 US 714, 719 [1975]). Moreover, this Court has repeatedly held, as noted earlier, that New York State’s constitutional standard for the effective assistance of counsel “‘offers greater protection than the federal test’” (Honghirun, 29 NY3d at 289, quoting Caban, 5 NY3d 143 at 155). In light of this precedent, the Court should craft a narrow rule that when appellate counsel fails to file a CLA and the one-year grace period under CPL 460.30 has expired, a defendant who has exercised reasonable due diligence in discovering counsel’s error is entitled to coram nobis relief under the New York State Constitution. Such a holding, simply limited to the restoring of a defendant’s right to request merits consideration of an intermediate appellate court order, would be consistent with the longstanding recognition by this Court that the New York State Constitution provides a “broader scope of protection than that accorded by the Federal Constitution in cases concerning individual rights and liberties” (Pavone, 26 NY3d at 639). III. Mr. Grimes Exercised the Requisite Due Diligence Warranting Coram Nobis Relief Applying the standard proposed here, Mr. Grimes was deprived of the effective assistance of appellate counsel. The pertinent facts are not in dispute. 16 Prior Counsel, after affirmatively advising Mr. Grimes that he would file a CLA on his behalf with this Court, failed to do so (R-11). The failure to file the CLA forfeited Mr. Grimes’ statutory right to request this Court to review several legal errors that he maintains occurred in Supreme Court and that were overlooked by the Appellate Division on direct appeal (see R-6-8; CPL 470.35[1]). But for Mr. Grimes’ exercise of due diligence, Prior Counsel’s error would not have been discovered. On January 9, 2017, less than one month after the one-year grace period under CPL 460.30(1) expired, Mr. Grimes sent a letter to Prior Counsel, inquiring about the status of his CLA (R-11). It was this letter that alerted Prior Counsel of his omission, prompting him to file the coram nobis application on behalf of Mr. Grimes that is the subject of this appeal (R-11). Mr. Grimes’ exercise of due diligence in this case stands in contrast to the defendants in Rosario who did not sustain their burden in establishing that they exercised the necessary due diligence warranting coram nobis relief (see Rosario, 26 NY3d at 605). There, defendants Rosario and Llibre contended that their counsel did not advise them of their right to appeal following the entry of their respective guilty pleas (see id. at 601-602). Both defendants waited several years after their conviction before petitioning for a writ of error coram nobis: defendant Rosario waited nearly five years, while defendant Llibre waited six years (see id.). In affirming the denial of their coram nobis applications, the Court stated that the 17 defendants did not act with due diligence because they did not “make any showing that they took steps toward discovering the omission or explain why years passed before they sought coram nobis relief” (id. at 604; see also Arjune, 2017 NY Slip Op 08158 [coram nobis application properly denied where, as in Rosario, defendant did not establish that he acted with reasonable diligence in discovering counsel’s omission by failing to identify what steps he took to discover counsel’s omission and the reason why he waited nearly six years to seek coram nobis relief]). Here, Mr. Grimes more than sustained his burden in establishing that he acted with reasonable due diligence in discovering Prior Counsel’s error. First, unlike in Rosario and Arjune, the record demonstrates that Mr. Grimes took an affirmative step to discover Prior Counsel’s omission: Mr. Grimes wrote a letter to Prior Counsel inquiring about the status of his CLA (R-11). Second, the record establishes that Mr. Grimes’ inquiry concerning his CLA was timely. Unlike the defendants in Rosario and Arjune, who failed to identify any steps they took to identify their attorneys’ errors and waited five or more years to petition for a writ of error coram nobis, Mr. Grimes reached out to his lawyer just over one year after Prior Counsel was required to file the CLA (R-11). Given the facts and circumstances presented here, Mr. Grimes had no reason to believe that the CLA had not been filed and, therefore, no reason to 18 inquire about the status of the CLA with Prior Counsel sooner. After all, Mr. Grimes, who was in custody at the time, received a letter from Prior Counsel that the CLA would be prepared and filed on his behalf (R-26). Under New York State constitutional law, it was reasonable for Mr. Grimes to rely on the representation of Prior Counsel. Furthermore, since Mr. Grimes remained incarcerated for approximately one year following the receipt of Prior Counsel’s November 2015 letter (see n 2, supra), it was not unreasonable, given those circumstances, that he had not inquired about the status of his CLA sooner. Moreover, when Mr. Grimes was released from prison on November 23, 2016 (see id.), he did not unreasonably delay reaching out to Prior Counsel. To the contrary, Mr. Grimes inquired about the status of his CLA on January 9, 2017, just six weeks after he had been discharged from custody (R-11; cf. Rosario, 26 NY3d at 605). In sum, the Court should grant Mr. Grimes coram nobis relief under the narrow rule proposed herein. The Court should conclude that Mr. Grimes established entitlement to coram nobis relief under the New York State Constitution because he demonstrated that Prior Counsel’s failure to file the CLA extinguished his right to seek further review of his underlying conviction, thereby depriving him of effective assistance of appellate counsel.6 In addition, the Court should find that Mr. Grimes, under the facts and circumstances presented here, 6 Even the People tacitly agree that Mr. Grimes should not be deprived of his right to file a CLA because they did not oppose the relief sought below and never asserted any prejudice. exercised reasonable due diligence in discovering Prior Counsel’s error and such error was not reasonably discoverable within the one-year grace period provided for in CPL 460.30. CONCLUSION For the foregoing reasons, this Court should reverse the order of the Appellate Division and grant Mr. Grimes’ application for a writ of error coram nobis. This Court should conclude that counsel’s failure to file a CLA deprived Mr. Grimes of the effective assistance of appellate counsel under New York State constitutional law. Dated: New York, New York December 19, 2017 Respectfully submitted, Baker Botts L.LJP. By: Joseph C. Pei 30 Rockefeller Plaza New York, NY 10112 (212) 408-2587 (212) 259-2587 (facsimile) Attorney for Defendant-Appellant Jakim Grimes 19 20 NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR PART 500.1(j) that the foregoing brief was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Typeface: Times New Roman Point size: 14 Line spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, and certificate of compliance, is 4,519 words. Dated: New York, New York December 19, 2017 Joseph C. Perry Baker Botts L.L.P. 30 Rockefeller Plaza New York, NY 10112 (212) 408-2587 (212) 259-2587 (facsimile) Attorney for Defendant-Appellant Jakim Grimes