The People, Appellant,v.Vinod Patel, Respondent.BriefN.Y.April 29, 2014To be argued by Lynn W. L. Fahey (10 Minutes) Court of Appeals State of New York _____________________________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - VINOD PATEL, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT LYNN W. L. FAHEY Attorney for Defendant- Appellant 2 Rector Street, 10th Floor New York, N.Y. 10006 Phone: (212) 693-0085 FAX: (212)-693-0878 September 10, 2013 I N D E X PRELIMINARY STATEMENT............................. 1 QUESTION PRESENTED................................ 1 SUMMARY OF ARGUMENT............................... 1 STATEMENT OF FACTS................................ 4 Introduction................................. 4 The Charges and Queens County Guilty Plea.... 6 The Disposition of the Nassau County Case.... 9 The Queens County Sentencing................. 9 Mr. Patel's Motion for Leave to File a Late Notice of Appeal........................ 10 Mr. Patel's Reconsideration Motion and Leave Application............................ 11 Mr. Patel's 440 Motions...................... 13 Mr. Patel's Coram Nobis Application.......... 15 The People's Opposition to the Coram Nobis Application............................ 18 The Appellate Division's Grant of Coram Nobis Relief................................. 19 ARGUMENT.......................................... 20 THE APPELLATE DIVISION HAD THE POWER TO GRANT RESPONDENT'S CORAM NOBIS APPLICA- TION REGARDLESS OF ITS EARLIER DENIAL OF HIS TIMELY BUT FAR MORE CURSORY PRO SE C.P.L. §460.30 MOTION........................ 20 A. Mr. Patel's Diligence in Seeking, Pro Se, Timely Permission to File a Late Notice of Appeal Did Not, and in Fundamental Fairness Could Not, De- prive the Appellate Division of the Power to Grant him Coram Nobis Relief... 20 B. The Appellate Division's Denial of Mr. Patel's C.P.L. §460.30 Motion Did Not Constitute "Law of the Case" so as to Preclude Coram Nobis Relief....... 35 i CONCLUSION........................................ 46 TABLE OF AUTHORITIES P a g e s Cases Boykin v. Alabama, 395 U.S. 238 (1969)............ 8,41 Campusano v. United States, 442 F.3d 770 (2d Cir. 2006)........................................ 39 Jones v. Barnes, 463 U.S. 745 (1983).............. 37 Matter of Dondi v. Jones, 40 N.Y.2d 8 (1976)...... 36 Matter of Lyons v. Goldstein, 290 N.Y. 19 (1943)............................................ 36 Martinez v. Ryan, 132 S.Ct. 1309 (2012)........... 3,30 People ex rel. Sedlak v. Foster, 299 N.Y. 291 (1949)............................................ 32 People v. Adams, 12 N.Y.2d 417 (1963)............. 3,22,23, 24,25,28, 31,34 People v. Bachert, 69 N.Y.2d 593 (1987)........... 24 People v. Boston, 75 N.Y.2d 585 (1990)............ 40 People v. Brun, 15 N.Y.3d 875 (2010).............. 44 People v. Callahan, 80 N.Y.2d 273 (1992).......... 38,40 People v. Corso, 40 N.Y.2d 578 (1976)............. 26,28 People v. D'Alessandro, 13 N.Y.3d 216 (2009)...... 3,32 People v. Duchin, 12 N.Y.2d 351 (1963)............ 41 People v. Evans, 94 N.Y.2d 499 (2000)............. 35 People v. Harris, 61 N.Y.2d 9 (1983).............. 41 People v. Johnson, 69 N.Y.2d 339 (1987)........... 28,29,34 People v. June, 242 A.D.2d 977 (4th Dept. 1997)... 38 ii People v. Lampkins, 21 N.Y.2d 138 (1967).......... 3,22,23, 24,25,28, 31,34,37 People v. Lassalle, 20 N.Y.3d 1024 (2013)......... 32,37 People v. Mazella, 13 N.Y.2d 997 (1963)........... 36 People v. Montgomery, 24 N.Y.2d 130 (1969)........ 22,25,26, 28,29,30 People v. Newsome, 106 A.D.3d 839 (2d Dept. 2013)............................................. 39 People v. O'Bryan, 26 N.Y.2d 95 (1970)............ 44 People v. Patel, 10 N.Y.3d 962 (2008)............. 13 People v. Patel, 74 A.D.3d 1098 (2d Dept. 2010)... 6,9,37 People v. Pitts, 6 N.Y.2d 288 (1959).............. 32,34 People v. Pollenz, 67 N.Y.2d 264 (1986)........... 38 People v. Radcliffe, 298 A.D.2d 533 (2d Dept. 2002)............................................. 44n People v. Ramsey, 23 N.Y.2d 656 (1968)............ 32,42 People v. Rivera, 39 N.Y.2d 519 (1976)............ 31,34 People v. Seaberg, 74 N.Y.2d 1 (1989)............. 39 People v. Stanley, 12 N.Y.2d 250 (1963)........... 23,25,28, 31,34 People v. Stevens, 64 A.D.3d 1051 (3d Dept. 2009)............................................. 44n People v. Syville, 15 N.Y.3d 391 (2010)........... 2,3,5,15, 18,19,26, 27,28,29, 33,34,35, 39 People v. Thomas, 47 N.Y.2d 37 (1979)............. 3,28,29n, 31,34 People v. Torres, 109 A.D.3d 669 (2d Dept. 2013).. 39 People v. Trueluck, 88 N.Y.2d 546 (1996).......... 40 People v. Turner, 5 N.Y.3d 476 (2005)............. 32 iii People v. Ventura, 17 N.Y.3d 675 (2011)........... 30 People v. Weinberg, 34 N.Y.2d 429 (1974).......... 41 People v. Zanghi, 79 N.Y.2d 815 (1991)............ 40 Roe v. Flores-Ortega, 528 U.S. 470 (2000)......... 3,33,34, 39,42 Constitutional Provisions and Statutes New York Constitution, Art. I, §6................. 40 New York Constitution, Art. VI, §1................ 36 New York Constitution, Art. VI, §4................ 36 New York Constitution, Art. VI, §5................ 29 22 N.Y.C.R.R. 671.3............................... 5,43,44 C.P.L. §440.10.................................... 13,14 C.P.L. §440.20.................................... 14 C.P.L. §450.10.................................... 29 C.P.L. §460.30.................................... passim iv COURT OF APPEALS STATE OF NEW YORK ------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- VINOD PATEL, Defendant-Respondent. -------------------------------------- PRELIMINARY STATEMENT This brief is submitted in response to the People's appeal from an order of the Appellate Division, Second Department, entered on July 11, 2012, granting respondent's coram nobis petition and deeming timely his notice of appeal from a February 6, 2007, judgment of the Supreme Court, Queens County, convicting him, upon a guilty plea, of two counts of possessing a sexual performance by a child and sentencing him to consecutive indeterminate prison terms of 1 1/3 to 4 years. This Court assigned Lynn W. L. Fahey as counsel on appeal. QUESTION PRESENTED Whether the Appellate Division had the power to grant respondent's coram nobis application regardless of its earlier denial of his timely but far more cursory pro se C.P.L. §460.30 motion. SUMMARY OF ARGUMENT Respondent Vinod Patel, a novice in the criminal justice system, pled guilty in closely-related Queens and Nassau 1 County cases in exchange for concurrent sentences. At his Queens plea to a Superior Court information, the court never told him he was waiving his rights to have his case presented to a Grand Jury, to be prosecuted only if he were indicted, to have a jury trial, to confront his accusers, or to remain silent. His attorney filed a notice of appeal in the Nassau County case only. Ten months after his Queens sentencing, when he discov- ered that his attorney had not filed a notice of appeal in that case, Mr. Patel filed a pro se motion for permission to file a late notice of appeal under C.P.L. §460.30, which the People successfully opposed. Mr. Patel persistently pursued relief through other avenues, but the People always success- fully opposed his pro se efforts. After this Court decided People v. Syville, 15 N.Y.3d 391 (2010), he filed a coram nobis application, raising his ineffective assistance claims again and this time providing correspondence with his attor- ney supporting them. The Appellate Division granted the coram. In asking this Court to reverse the coram grant, the People argue that the Appellate Division was forever barred from granting Mr. Patel coram relief because it had earlier denied his timely, if relatively bare-bones and inarticulate, pro se §460.30 motion. That argument distorts this Court's decisions, which have never held that coram nobis relief is available only when no other avenue of relief was ever avail- able to the defendant. Indeed, in numerous comparable cases, 2 the Court has considered defendants' diligent pro se pursuit of available remedies as a positive factor, favoring coram relief. E.g., People v. Lampkins, 21 N.Y.2d 138 (1967); People v. Adams, 12 N.Y.2d 417 (1963). The People's position also ignores the fundamental nature of the right to appeal in New York and the difficulty inexperienced pro se defendants naturally face in attempting to effectuate their appellate rights. As the Supreme Court recently recognized in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 1317 (2012), pro se defendants, "unschooled in the law," may have "difficulty vindicating a substantial" ineffective assistance of counsel claim. Similarly, this Court has repeatedly expressed particular solicitude for pro se defendants who need to make multiple attempts before they can successfully articulate an ineffective assistance claim related to their right to appeal. See, e.g., People v. D'Alessandro, 13 N.Y.3d 216 (2009); People v. Thomas, 47 N.Y.2d 37 (1979); Lampkins, supra; Adams, supra. The rule the People seek would also run counter to the long-standing policy of encouraging defendants to be diligent in pursuing their right to appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 485 (2000); People v. Syville, 15 N.Y.3d 391, 401-402 (2010). Instead of rewarding diligence, it would punish the diligent pro se defendant and reward the otherwise similarly situated defendant who was less diligent. In support of their effort to limit the Appellate Divi- sion's power, the People also make a patently unavailing "law 3 of the case" argument that misapprehends the "law of the case" doctrine, misquotes the case on which they rely, and ignores the inherent power of a single court to correct a prior error or grant relief when a pro se defendant finally manages to provide the necessary support to advance a com- pelling claim. In this context, and apparently in an attempt to suggest that Mr. Patel's appeal is frivolous, the People argue that the Appellate Division was powerless to grant him coram re- lief because it had been "justified" in denying his original pro se §460.30 motion. But Mr. Patel's appeal was clearly non-frivolous. And, in any event, whether to appeal was his decision and the fuller showing he made in his coram nobis petition established his ineffective assistance claim, as the Appellate Division found. The People's latest in a consistent series of attempts to prevent Mr. Patel from exercising his fundamental right to appeal should be rejected, the Appellate Division's power to grant meaningful coram relief upheld, and its grant of such relief to Mr. Patel affirmed. STATEMENT OF FACTS Introduction Respondent Vinod Patel pled guilty to a Queens County Superior Court information in a proceeding so cursory that he was not told that he was waiving his rights to have his case presented to a Grand Jury, to be prosecuted only if he were 4 indicted, to have a jury trial, to confront his accusers, or to remain silent. Although his retained attorney filed a timely notice of appeal in his closely related Nassau County case, he neither filed a notice of appeal in the Queens case nor provided Mr. Patel with the written notice of his appeal- related rights required by 22 N.Y.C.R.R. 671.3. When Mr. Patel learned 10 months later that no notice of appeal had been filed in the Queens case, he sought permis- sion to file a late notice of appeal pursuant to Criminal Procedure Law §460.30, but the People opposed his pro se motion, as well as his motion for reconsideration, and the Appellate Division denied both. Still proceeding pro se, Mr. Patel unsuccessfully sought leave from the denial of those motions, complained repeatedly to defense counsel about counsel's failure to file a notice of appeal, and filed a series of C.P.L. Article 440 motions in which he complained that his guilty plea and associated waivers were not knowing and voluntary, as well as that his attorney was ineffective for, inter alia, failing to file a notice of appeal or prop- erly advise him of his appellate rights. The People opposed those motions, which were denied on the ground that Mr. Patel could have raised the issues on direct appeal. Finally, after this Court decided People v. Syville, 15 N.Y.3d 391 (2010), Mr. Patel filed a coram nobis petition, arguing that his trial attorney was ineffective for failing to file a notice of appeal or properly apprise him of his ap- pellate rights and providing correspondence with his attorney 5 that strongly supported his position. The Appellate Divi- sion, Second Department, granted his petition and deemed him to have filed a timely notice of appeal. The People now ap- peal from that coram grant. The Charges and Queens County Guilty Plea Mr. Patel, a steadily-employed man with no prior record (A.2, 9, 43),1 was charged in a Queens County Criminal Court complaint with 11 counts of possessing a sexual performance by a child in connection with pornography placed on his work computer on September 12 and October 5, 2005 (A.2-3). Fol- lowing an investigation, he was also charged in Nassau County with rape, criminal sexual act, and incest. People v. Patel, 74 A.D.3d 1098 (2d Dept. 2010). On September 21, 2006, represented by retained counsel Robert Gottleib, Mr. Patel pled guilty, before Hon. Dorothy Chin-Brandt, to a Queens County Superior Court information charging him with two counts of possessing a sexual perform- ance by a child, one for each of the two dates on which the images had been placed on his computer (A.9-10). The court said it would impose the maximum lawful sentences for a first felony offender, consecutive indeterminate prison terms of 1 1/3 to 4 years, to run concurrently with whatever sentence he received in his as-yet-unresolved Nassau County case (A.11). Immediately after the proceedings began with Mr. Patel being sworn (A.6), there was the following discussion about 1 Parenthetical numbers preceded by "A" will refer to pages of the People's Revised Appendix. 6 Mr. Patel's "Superior Court information and also a waiver of [his] right to appeal" (A.6): THE CLERK: You are about to sign a couple of documents. Your attorney will explain it to you. He's pleading to two E felonies, one and a third to four consecutive and con- current to Nassau. Do you have the Nas- sau number? MR. ALEXANDER [the prosecutor]: I will put it on the record. THE COURT: All right, Vinod Patel, I have before me a Superior Court infor- mation and also a waiver of your right to appeal. Did you just sign these two doc- uments here in open court before me with your lawyer by your side? THE DEFENDANT: By myself. THE COURT: I can't hear you. THE DEFENDANT: By myself. THE COURT: Answer my question. Did you hear my question? Did you just sign these two docu- ments here in open court before me with your lawyer by your side; yes or no? THE DEFENDANT: Yes, ma'am. THE COURT: Did your lawyer discuss these documents with you, you understood what it was you were signing and what rights you were giving up by signing these documents? THE DEFENDANT: Yes, ma'am. THE COURT: Did you sign voluntari- ly? THE DEFENDANT: Yes, ma'am. THE COURT: I can't hear you. THE DEFENDANT: Yes, ma'am. 7 THE COURT: I find the waiver and consent were knowingly and voluntarily executed by this defendant (A.6-7). The court did not ask Mr. Patel whether he had actually read either document before signing it or whether either document had been read to him verbatim. The record reflects no pause during which such a reading, or even a reasonably detailed explanation, could have been given to him. The court made no mention of Mr. Patel's right to have his case presented to a Grand Jury, his right to be prosecuted only if he were indicted, or any other right he was relinquishing by agreeing to be prosecuted by a Superior Court information. The court did not ask Mr. Patel what he understood the docu- ments to mean. Nor did it elicit from defense counsel what counsel had told Mr. Patel or obtain any assurance that, in counsel's opinion, Mr. Patel understood the rights he was giving up. Defense counsel waived the reading of the information and said Mr. Patel pled guilty (A.8). Mr. Patel acknowledged that he wished to plead guilty and had discussed the plea with counsel (A.8). As to the rights Mr. Patel gave up by pleading guilty, the court said only, "You understand you are giving up your right to go to trial and all rights of trial" (A.8). It never mentioned that he was waiving his rights to a jury trial, to confront his accusers, or to remain silent. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Mr. Patel admitted that, on September 12 and October 5, 2005, he knowingly possessed computer files depicting sexual 8 conduct by a child under the age of 16 (A.9-10). The court set forth its sentence promise and told Mr. Patel that he would need to register as a sex offender upon his release from prison (A.11-12). The Disposition of the Nassau County Case Two months later, on November 30, 2006, Mr. Patel pled guilty to first-degree rape and criminal sexual act and in- cest in Nassau County. On January 11, 2007, he was sentenced to a determinate prison term of 15 years and 5 years of post- release supervision (A.17, 85; People v. Patel, 74 A.D.3d 1098 (2d Dept. 2010)). The Queens County Sentencing On February 6, 2007, represented by Mr. Gottleib's as- sociate, Jordan Dressler, Mr. Patel appeared before Justice Chin-Brandt for sentencing in the Queens case (A.14). The People relied on the negotiated plea, although they also submitted a sealed document to the court and asserted that a statement in the pre-sentence report showed that Mr. Patel was not taking full responsibility for his actions (A.15-17). Defense counsel disputed that claim, suggesting that something Mr. Patel said might have been misinterpreted (A.18). In that context, he stressed how inter-related the Queens and Nassau County cases were: . . . the Nassau case . . . arose out of related facts. The real gravamen of the crime occurred in Nassau. . . . [T]he offense committed in the Nassau case[] really drove this prosecution and 9 the prosecution in both jurisdictions really occurred hand in hand (A.18). After an attorney-client conference, Mr. Patel added, "I'm so sorry what happened. I'm sorry. I'm taking responsibility for my actions" (A.19). The court sentenced Mr. Patel to consecutive indetermin- ate prison terms of 1 1/3 to 4 years, to run concurrently with his Nassau County sentence (A.19). Defense counsel Gottleib filed a notice of appeal in the Nassau County case, but not in the Queens case (A.60, 77). Mr. Patel's Motion for Leave to File a Late Notice of Appeal In a pro se motion dated November 8, 2007, Mr. Patel sought permission to file a late notice of appeal in the Queens case pursuant to Criminal Procedure Law §460.30 (A.22- 29). In his accompanying two-page affidavit, he asserted: 5). The failure to file notice of appeal in timely fashion resulted from: a. Improper conduct of defendant's at- torney. Attorney forgot that de- fendant requested to file the notice of appeal. b. Ineffective assistance of counselor: As per memorandum pursuant to NYCRR 1022.11(a) Counselor is required to notify defendant in writing of his right to appeal in all cases. In- stant case counselor failed to noti- fy defendant in writing (A.23). Attaching copies of the Superior Court information and appeal waiver form (A.25-28), Mr. Patel also complained that, at his guilty plea, "Counselor waived all right by taking signature 10 from defendant without explaining anything about court pro- ceedings" (A.24). In an affirmation by William H. Branigan dated December 21, 2007, the People opposed the §460.30 motion. They com- plained about the 10-month delay between sentencing and the motion (A.36). They contended that Mr. Patel's claims "con- tradict[ed] one another" since, if he told his attorney he wished to appeal, the attorney was not required to provide him with "formal written notice" (A.36). And they argued that Mr. Patel had "failed to set forth any sworn and cred- ible allegations of fact or documentary proof to justify an extension of time," instead relying on "self-serving alle- gations" that were not credible because his "signing of the appeal waiver, and the forfeiture of most claims by the plea itself" strongly suggested that he had decided not to appeal (A.36).2 In a decision and order dated January 11, 2008, the Ap- pellate Division, Second Department, summarily denied the motion (A.39). Mr. Patel's Reconsideration Motion and Leave Application On January 22, 2008, only 11 days after the Appellate Division's denial of his motion and still within the one-year grace period provided by C.P.L. §460.30, Mr. Patel filed a 2 The People also successfully opposed Mr. Patel's in forma pauperis application (A.30-34), in which he swore that he had no assets or income and could not pay the costs associated with an appeal (A.31-33), because he had retained counsel below (A.37). 11 pro se "Reconsideration" motion (A.40). Noting that he had no previous experience with the criminal justice system (A.43), he asserted that his appeal waiver was invalid, inter alia, because his attorney "did not inform[ him] of the na- ture of his right to appeal and rights proceeding therein after" (A.43) and because the waiver was improperly "'lumped in' with other waivers" during the plea (A. 42-43). He also asserted that his motion had been filed within 12 months of his sentencing (A.41), and that counsel is obligated to pro- vide information about the right to appeal regardless of whether the offense is a "violation or felony" and whether there has been an appeal waiver (A.41, 42). In an affirmation by Ushir Pandit dated February 29, 2008, the People opposed Mr. Patel's reconsideration motion, relying on the Appellate Division's prior denial (A.53).3 The People also noted that, on January 29, 2008, Mr. Patel had filed a pro se motion in the trial court, seeking in forma pauperis relief and transcripts, and that the People had opposed that request (A.53). In a decision and order dated March 21, 2008, the Appel- late Division summarily denied the reconsideration motion 3 Mr. Patel also provided a sworn "declaration" stating, "of my poverty that I am unable to pay cost o[f] said proceeding or give security, because I do not own any cash, savings ac- count, . . . automobiles or such other valuable property" (A.44). Although Mr. Patel attached the Appellate Division's July 6, 2007, order granting him poor person relief on his Nassau County appeal (A.48-50), the People nevertheless urged that, even if the Appellate Division granted his §460.30 motion, it should deny him in forma pauperis relief because he had not "set forth the amount and source of counsel fees" paid to his trial attorney (A.53-54). 12 (A.56). Still proceeding pro se, Mr. Patel sought leave to appeal to this Court; that application was dismissed on July 8, 2008 (A.87-88; People v. Patel, 10 N.Y.3d 962 (2008)). Mr. Patel's 440 Motions Having failed in his efforts to obtain permission to file a late notice of appeal, and now being beyond the one- year grace period provided by C.P.L. §460.30, Mr. Patel sought to assail the validity of his guilty plea in the trial court. In January of 2009, Mr. Patel filed a pro se C.P.L. §440.10 motion claiming, inter alia, that the Superior Court information was invalid, that he never waived his right to be prosecuted by an indictment, that he did not understand the rights he was giving up by signing an appeal waiver, and that his attorney coerced him into pleading guilty and never ex- plained the waiver (A.87-88). The People opposed the motion on three bases: (1) that some claims were barred because Mr. Patel could have raised them on direct appeal "but unjustifiably failed to do so" (A.88); (2) that his claims about the waivers were belied by the record (A.88); and (3) that some claims were forfeited by his appeal waiver (A.89). In a reply, Mr. Patel asserted that his attorney had failed to inform him of his right to appeal or honor his re- quest to file a notice of appeal (A.89). In a sur-reply, the People argued: (1) that Mr. Patel was improperly making new arguments in a reply; (2) that his 13 "new" claims were meritless, as "confirmed" by the Appellate Division's denial of his §460.30 motion; and (3) that the claims were precluded by his appeal waiver (A.88-89). Mr. Patel filed a pro se replacement §440.10 motion, raising essentially the same claims, which the People opposed on essentially the same grounds (A.90-92). As to Mr. Patel's claim that the court had improperly "lump[ed] together" his waivers of indictment and appeal, the People argued that the waivers were contained in "two separate documents" and that the court had "ensured that he waived those rights after con- sulting with his attorney and in the presence of the court" (A.92). On September 21, 2009, Justice Chin-Brandt summarily denied Mr. Patel's §440.10 motion, finding it mandatorily barred because his "claim was resolvable on the record and defendant had unjustifiably failed to bring it on direct ap- peal" (A.92). Mr. Patel, still acting pro se, timely sought permission to appeal from the denial of his §440.10 motion, which the People opposed, arguing that the motion had been properly denied "as resolvable on the record" (A.93). Permission to appeal was denied on February 16, 2010 (A.93). Mr. Patel also filed a pro se C.P.L. §440.20 motion, arguing, inter alia, that his sentence was illegal because his plea allocution and the Superior Court information pro- vided no legitimate basis for imposing consecutive sentences (A.93-94). The People opposed the motion, which was summari- 14 ly denied, as was Mr. Patel's leave application (A.94-95). Mr. Patel thereafter sought a writ of certiorari to the United States Supreme Court (A.95). Mr. Patel's Coram Nobis Application On October 21, 2011, a year after this Court decided People v. Syville, 15 N.Y.3d 391 (2010), Mr. Patel, still proceeding pro se, filed a coram nobis petition in the Appel- late Division, Second Department, returnable November 8, 2011, alleging that he had been denied the effective assist- ance of counsel in relation to his right to appeal (A.57-63). In Mr. Patel's supporting affidavit, he asserted, inter alia, that he: was not indicted and [was] coerced to sign on all waivers without explaining with defendant/appellant about plea agreement and give maximum sentence for alleged crimes (A.59). He also alleged that his "plea and sentencing proceeding were inadequate as shown in plea and sentencing minutes" (A.59), and that his attorney had "hurried in finishing the Court proceeding at Queens county case" (A.60). As to his right to appeal, Mr. Patel alleged that he: . . . was not aware about defense counsel's failure to file a Notice of Appeal after sentence upon request. De- fense counsel was aware that defendant wanted to appeal for both county convic- tions. Counselor filed notice of appeal in Nassau case but failed to file in Queens case. . . . . . . defense associate counsel Mr. Jordan Dressl[e]r failed to consult with defendant/appellant after sentence about appeal, failed to give any written notice 15 about appeal and also failed to file a Notice of Appeal (A.60). Mr. Patel cited defense counsel's constitutional duty to con- sult with the defendant about appealing and duty under court rules to provide written notice regarding the right to appeal (A.60-61). He argued that he "lost the right to appeal due solely to the unconstitutionally deficient performance of counsel" (A.62). On April 26, 2012, apparently in response to the Appel- late Division's request, Mr. Patel sent the court the "re- quired copy of correspondence with defense attorney" (A.70- 81).4 He provided copies of the following letters: • Robert C. Gottleib's letter confirming his retention to represent Mr. Patel in the Queens and Nassau County cases ("Docket Nos. 2006QN013516, 2006NA005046, 2006NA005047"), signed by Mr. Gottleib and countersigned by Mr. Patel on June 20, 2006 (A.75-75A). • Mr. Patel's February 28, 2009, letter to Mr. Gottleib, captioned ("Re: Patel v. People, Indictment No. 2335N/06 & 2473/06 QN"), inter alia, complaining about: the Ethical violations that occurred in the Queens County case which you did not even file the required Notice of Appeal, ie, see Title 22 NYCRR §671.2, §671.3(a)(b) of the Court Rules. This is tantamount to Ineffective Assistance and violation of the A.B.A. Canon of Professional Responsibility . . . (A.76).5 4 Although Mr. Patel called this submission a "verified reply," he explained that he had received a copy of the People's request for an enlargement of time to April 27, 2012, to respond to his coram nobis application, but had not yet received the People's response (A.70). 5 Mr. Patel also provided an affidavit that he had served the letter on Mr. Gottleib by mail on February 28, 2009 (A.76A). 16 • Mr. Gottleib's March 12, 2009, response, referring only to the Nassau case: In reply to your letter of February 28, 2009, I am enclosing a copy of the Notice of Appeal duly filed in your case by this office on January 26, 2007. I am also enclosing a copy of the acknowledgement of re- ceipt of the Notice of Appeal by the Appellate Division, Second Depart- ment dated February 13, 2007 (A.77). • Mr. Patel's March 20, 2009, letter captioned "SCI No. 2473/06 Queens County," reminding Mr. Gottleib that, in his previous letter, Mr. Patel had asked "about Ethical violation that occurred in Queens County case in which you did not file the required Notice of Appeal," and asking Mr. Gottleib to reread his February 28, 2009, letter and respond (A.77A). • Mr. Patel's April 28, 2009, letter to Mr. Gottleib, requesting an affidavit for his then-pending 440 motion as to "Queens County S.C.I. 2473/06"; explaining that he was try- ing to show that his plea under the Superior Court information "was not Knowing or Intelli- gent"; and saying, "I truly feel . . . I was not properly informed about my options" (A.78- 78A). • Mr. Patel's August 9, 2010, letter to Mr. Gottleib, saying he had "made several attempts to consult with" Mr. Gottleib in an effort to resolve their problems, but had been met with Mr. Gottleib's "complete failure to reply" (A.79). • Mr. Gottleib's September 4, 2009, letter ad- vising Mr. Patel that his "entire file ha[d] been turned over to [his] appellate attorney" (presumably the attorney assigned to represent him on his Nassau County appeal) (A.79A). In Mr. Patel's accompanying "verified reply," he sum- marized the correspondence he was attaching (A.71-72). He pointed out that, when he complained about the failure to file a notice of appeal in the Queens case, Mr. Gottleib had misleadingly responded about only the Nassau County case 17 (A.72). Citing Syville, he reiterated his ineffective as- sistance claim, asserting that he: was not informed and [was] coerced to sign all waivers (which was dumped on one page) without explaining about plea agreement and hurriedly complete court proceeding. . . . defense attorney Mr. Jordan [Dressler] also failed to inform defendant for appeal rights (A.72). The People's Opposition to the Coram Nobis Application In an affirmation by John F. McGoldrick dated April 26, 2012, the People detailed Mr. Patel's numerous efforts to pursue his claims and their opposition to each motion (A.83- 95). They opposed Mr. Patel's coram nobis application on several grounds (A.82-98).6 First, the People argued that Mr. Patel's coram nobis claims were "barred" because he had sought relief pursuant to C.P.L. §460.30, filed both his §460.30 and reconsideration motions within that statute's one-year grace period, and had them denied (A.96-97, 99-101). They argued that the Appel- late Division had already properly considered and rejected his purportedly "inconsistent" claims (A.101-102). The People also faulted Mr. Patel for failing to file his coram nobis petition with "due diligence" (A.102). Ac- cording to the People, because the §460.30 and reconsidera- 6 Although Mr. McGoldrick's affirmation said that it was based, inter alia, on conversations with Jordan Dressler and another person from Mr. Gottleib's office (A.82), the affirm- ation contained no facts attributed to either of them (A.83- 98). Instead, it recited only facts readily available from the court file and/or the records of the District Attorney's office (A.83-98). 18 tion motions were denied on January 11 and March 21, 2008, Mr. Patel had "waited four years [sic] to pursue" coram nobis relief, and therefore "should not be heard to complain" (A.102). The People argued, based on the "beneficial plea bar- gain," Mr. Patel's execution of an appeal waiver, and the risk to Mr. Patel if he successfully sought plea withdrawal on appeal, that the decision not to appeal was "a reasonable" one that must have been made "by competent counsel . . . in consultation with defendant" (A.102). Finally, despite the People's own reliance on the plea and appeal waiver in op- posing the coram, they argued that Mr. Patel's claims that his plea and waivers were not knowing and voluntary were "plea and pre-plea claims" that were "not cognizable" in a coram nobis petition (A.97). The Appellate Division's Grant of Coram Nobis Relief In a decision and order dated July 11, 2012, the Ap- pellate Division, Second Department, granted Mr. Patel's coram nobis application and deemed his notice of appeal to have been timely filed. Citing Syville, the court ruled that "The defendant has established his entitlement to the relief requested" (A.105). 19 ARGUMENT THE APPELLATE DIVISION HAD THE POWER TO GRANT RESPONDENT'S CORAM NOBIS APPLICA- TION REGARDLESS OF ITS EARLIER DENIAL OF HIS TIMELY BUT FAR MORE CURSORY PRO SE C.P.L. §460.30 MOTION. Respondent Vinod Patel, a novice to the criminal justice system, pled guilty in a proceeding that was patently inade- quate to establish a knowing, intelligent, and voluntary waiver of either his right to be prosecuted by an indictment or the Boykin rights he gave up by pleading guilty. The People have since opposed his diligent pro se efforts to ap- peal at every turn. Now that the Appellate Division has finally granted Mr. Patel an appeal, the People seek to reverse that decision and limit the Appellate Division's power for a variety of spe- cious reasons. In doing so, they distort this Court's prece- dent, ignore the fundamental nature of the right to appeal in New York, and use an inexperienced pro se defendant's dili- gence against him. The Court should reject the People's arguments and affirm the Appellate Division's grant of Mr. Patel's coram nobis petition. A. Mr. Patel's Diligence in Seeking, Pro Se, Timely Permis- sion to File a Late Notice of Appeal Did Not, and in Fundamental Fairness Could Not, Deprive the Appellate Division of the Power to Grant him Coram Nobis Relief. The People's basic argument is that, because Mr. Patel, a criminal justice novice acting pro se, timely sought relief pursuant to Criminal Procedure Law §460.30, the Appellate Division was forever barred from granting him an appeal in 20 response to a coram nobis petition. That argument distorts this Court's precedent to advance a rule that coram nobis relief is available only when no other avenue of relief was ever available to the defendant. It ignores both the funda- mental nature of the right to appeal in New York and the dif- ficulty inexperienced pro se defendants naturally face in articulating even the most legitimate claim. And despite New York's long-standing policy of encouraging diligence, it seeks to punish a defendant for diligently pursuing his right to appeal. The People claim that the Appellate Division lacked the power to consider Mr. Patel's coram nobis petition because a coram lies "only" when no other remedy is available and Mr. Patel had unsuccessfully sought relief under C.P.L. §460.30 (Peo's Br. at 18-27). According to the People, "this Court has repeatedly held that coram nobis only lies where neces- sary to review a claim that cannot otherwise be addressed by statute" (Peo's Br. at 2, 4, 16), and "coram nobis is limited to situations in which no other review is available" (Peo's Br. at 18, 19, 26). Therefore, in the People's view, since Mr. Patel unsuccessfully advanced his claim once under C.P.L. §460.30, he may not now advance it via coram nobis and the Appellate Division lacks the power to grant him coram relief (Peo's Br. at 26). The People's position should be rejected for numerous reasons. First and foremost, it unreasonably distorts this Court's precedent, which has never suggested that a pro se 21 defendant's unsuccessful pursuit of relief that was previous- ly available to him forever bars him from using the writ of error coram nobis to vindicate his claim or renders the Ap- pellate Division powerless to grant him coram relief. For 50 years, this Court has made coram nobis relief available to pro se defendants who have diligently, but fruitlessly, sought to vindicate their appellate rights. Because it has repeatedly equated a defendant's right to take an appeal in the first place with his right to perfect one, People v. Montgomery, 24 N.Y.2d 130, 132 (1969); People v. Adams, 12 N.Y.2d 417, 420 (1963), its cases allowing diligent pro se defendants more than one chance to seek reinstatment of a dismissed appeal is highly relevant to Mr. Patel's issue. Those cases demonstrate the illogic of the People's reasoning. In People v. Lampkins, 21 N.Y.2d 138 (1967), for exam- ple, Lampkins claimed that his attorney had improperly allow- ed his appeal to be dismissed for lack of prosecution, appar- ently because pursuing it entailed a risk, although Lampkins himself wanted to pursue the appeal. When Lampkins learned that his appeal was on the dismissal calendar, he wrote to a judge, asking that his appeal be saved, as well as to his attorney, asking why the case was on the dismissal calendar. 21 N.Y.2d at 141. After the appeal was dismissed, Lampkins "undertook what turned out to be a Herculean task" of obtain- ing the minutes. 21 N.Y.2d at 141. He made a motion to reinstate his appeal, which the Appellate Division denied. 22 21 N.Y.2d at 142. He then filed a coram nobis petition, which was also denied. 21 N.Y.2d at 138. In reversing, this Court held that coram nobis relief was available to Lampkins, despite the fact that he had unsuccessfully moved for reinstatement of his appeal. 21 N.Y.2d at 142. Moreover, it stressed -- as factors in Lampkins's favor -- his diligence in acting as best he could "as soon as [he] had knowledge of his appeal rights," 21 N.Y.2d at 141-142, and the persistence of his efforts to have his appeal reinstated. 21 N.Y.2d at 141. Noting that, unlike the denial of a reinstatement motion, the denial of a coram nobis application would allow for review by the Court of Appeals, the Court said defendants who wished to appeal the dismissal of their appeals to this Court should opt to proceed by coram. Lampkins, 21 N.Y.2d at 142; see also People v. Adams, 12 N.Y.2d 417 (1963)(coram nobis available to seek reinstatement of a dismissed appeal although the defendant had twice previously moved pro se, without success, to set aside the dismissal); People v. Stanley, 12 N.Y.2d 250, 251 (1963)(same, when a defendant's appeal had improperly been dismissed as a result of his indi- gence, although he had "[r]epeatedly during the intervening years, . . . moved for relief" and had his motions denied "on one ground or another"). Like Lampkins, Mr. Patel sought relief by a means avail- able to him "as soon as [he] had knowledge of his appeal rights." 21 N.Y.2d at 141-142. And like Lampkins, Adams, 23 and Stanley, he persisted in seeking to vindicate his appel- late rights by any avenue he could. Just as Lampkins's timely but unsuccessful pro se motion to have his appeal reinstated did not bar him from seeking the same relief by means of a coram nobis petition, Mr. Patel's timely but unsuccessful pro se motion for permission to file a late notice of appeal could not bar him from seeking the same relief later in a coram. As these cases clearly show, and contrary to the People's assertions, this Court has not held coram nobis relief to be barred whenever a defendant has previously sought the same relief by some other available means. This Court has considered the unavailability of other relief as a factor in deciding whether to expand coram nobis, but that is not the same as holding that the writ is available only when no other relief is, or ever has been, available. In the seminal case of People v. Bachert, 69 N.Y.2d 593 (1987), for example, the Court said the "absence of a codi- fied form of relief" for claims that appellate counsel was ineffective "and the long-standing recognition of coram nobis flexibility help lead us to the conclusion" that coram nobis is the "best suited" remedy. 69 N.Y.2d at 596. It did not say that coram nobis was available only when no other avenue of relief exists, much less that it is available only when no other avenue of relief has ever existed. People v. Adams, supra, 12 N.Y.2d 417, is highly rele- vant in two respects. First, it refutes the People's argu- 24 ment as to what the Court's coram jurisprudence means by using the language on which the People rely but interpreting it in precisely the opposite way from the People. In Adams, the Court stated the rule on which the People rely: One wrongfully prevented from taking or perfecting . . . an appeal is "entitled to judicial redress" by way of coram nobis where no other avenue of judicial relief is available. 12 N.Y.2d at 420. But in that very case, the Court approved coram relief even though Adams had twice properly, albeit unsuccessfully, brought pro se motions to set aside the dis- missal of his appeal. It could not have reached that result if the language the People quote meant what the People want it to mean. Second, in both Adams and People v. Montgomery, supra, 24 N.Y.2d at 132, the Court explicitly coupled the right to perfect an appeal -- which it addressed in Lampkins, Adams, and Stanley -- with the right to take an appeal in the first place. In Adams, it spoke of the wrongful prevention of a defendant "from taking or perfecting" an appeal. 12 N.Y.2d at 420. And in Montgomery, it equated the two rights again: . . . every defendant has a fundamental right to appeal his conviction . . . , accordingly, basic fairness and due process require that the right not be dissipated either because the defendant was unaware of its existence or counsel failed to abide by a promise to either file or prosecute an appeal. 24 N.Y.2d at 132 (emphasis added). The Court has thus re- peatedly suggested that no distinction should be drawn between a claim involving counsel's ineffectiveness in 25 failing to perfect an appeal and prevent its dismissal and one involving counsel's ineffectiveness in failing to effectuate a defendant's right to appeal in the first place. In Montgomery, the Court expressed its "fundamental concern" that defendants be properly informed about their appellate rights, stating, "there is no justification for making the defendant suffer" the loss of his right to appeal due to "his attorney's failing." 24 N.Y.2d at 132. It therefore provided for a resentencing procedure for defend- ants who found themselves in that situation. 24 N.Y.2d at 133-134. The Legislature subsequently adopted C.P.L. §460.30, providing that applications for permission to file late notices of appeal could be made within a one-year grace period in the situations previously handled by Montgomery resentencings. That statute, with its one-year time limit, was seen as effectively replacing Montgomery resentencings. See People v. Corso, 40 N.Y.2d 578 (1976). But, as the Court recently recognized in People v. Syville, 15 N.Y.3d 391, 397 (2010), §460.30 proved insufficient to vindicate the due pro- cess rights of all the defendants whose attorneys had failed to properly protect their appellate rights. Therefore, in Syville, the Court held that coram nobis relief is available for claims of ineffective assistance of counsel after the time limit for §460.30 relief has passed. The People argue that Syville limits coram relief to defendants who never sought timely relief under §460.30 26 (Peo's Br. at 23-24, 26). But it neither explicitly nor im- plicitly does so. Rather, the language to which the People point about the unavailability of other remedies obviously reflects merely the facts the Court had before it. Syville had discovered when he filed an in forma pauperis application in July of 2006 that his attorney had filed an untimely notice of appeal from his November 2004 conviction. He filed "several" untimely pro se §460.30 motions, which were denied, before finally filing a coram nobis petition. 15 N.Y.3d at 394-395. The other defendant whose case was joined with Syville's, Tony Council, had similarly not learned of his attorney's failure to file a notice of appeal until the one-year grace period of §460.30 "had long since expired." 15 N.Y.3d at 396. Thus, both Syville and Council had no knowledge of their attorneys' failures until the §460.30 grace period had ex- pired. Under those circumstances, the Court framed the issue before it as whether coram relief is available to "defendants who did not move within the one-year grace period because they were unaware during that year that their attorneys had not complied with the requests to file notices of appeal." 15 N.Y.3d at 394. Recognizing that due process requires an avenue for relief "in such a circumstance," it concluded that coram nobis "is the appropriate procedural course in New York." 15 N.Y.3d at 397. In this context, the Court noted: Since the adoption of the CPL, we have acknowledged that the writ continues to be available to alleviate a constitution- 27 al wrong when a defendant has no other procedural recourse. 15 N.Y.3d at 400. In Syville, the Court obviously did not consider Mr. Patel's situation, in which he discovered his attorney's failing within the one-year §460.30 grace period, diligently moved pro se within that period, but had his §460.30 motions denied and therefore is now -- just like Syville and Council -- without any remedy other than coram nobis. In providing relief to Syville and Council, the Court could not have meant to deny it to someone in Mr. Patel's position, especially given its long-established law allowing coram relief in such cases as Lampkins, Adams, and Stanley, where pro se defend- ants diligently but unsuccessfully pursued remedies available to them to seek reinstatement of dismissed appeals. People v. Thomas, 47 N.Y.2d 37 (1979), and People v. Corso, supra, 40 N.Y.2d 578, on which the People so heavily rely (Peo's Br. at 21-24), actually undercut their claim that a defendant like Mr. Patel, who timely sought §460.30 relief, should be treated less favorably than Syville and Council, who did not. The Court noted in Thomas that the purpose of §460.30's time limit was "to eliminate stale Montgomery claims." 47 N.Y.2d at 43 (emphasis added). In Corso -- where the de- fendant had not "made timely efforts" to appeal, People v. Johnson, 69 N.Y.2d 578 (1976) -- it held that Montgomery claims should be brought under §460.30 and that belated claims would be untimely. But in Thomas and Johnson, where 28 the defendants had made diligent efforts to assert their appellate rights, the Court found reasons not to enforce the §460.30 time limit.7 And in Johnson, 69 N.Y.2d at 341-342, it explicitly noted Corso's absence of "timely efforts" to appeal in finding itself not bound by that decision. It would make no sense to use a statute designed to encourage diligence to penalize a defendant who timely, although fruit- lessly, sought relief under it. To deny coram relief to Mr. Patel and others like him, as the People argue that the Appellate Division was required to do, would ignore the fundamental nature of the right to appeal granted by New York's Constitution, the truism that inexperienced pro se defendants are often unable to articu- late a winning argument on their first attempt, and our long tradition of rewarding rather than punishing defendants' diligence in seeking vindication of their appellate rights. The right to appeal from a criminal conviction is en- shrined in the New York Constitution, Art. VI, §5, and also codified in C.P.L. §450.10. This Court recognizes "every defendant['s] fundamental right to appeal." Montgomery, 24 N.Y.2d at 132. In Syville, 15 N.Y.3d at 398, it recognized that due process: 7 In Thomas, the Court held that the People were estopped from asserting the time limit of §460.30 because their "omis- sions" had helped to frustrate Thomas's "diligent efforts to preserve his right to appeal." 47 N.Y.2d at 43. In Johnson, it found the time bar inapplicable because it did not yet exist during the period when Johnson had been trying to ap- peal. 69 N.Y.2d at 341. 29 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 assist- ance of counsel. Just two years ago, in People v. Ventura, 17 N.Y.3d 675 (2011), the Court again stressed the importance of defend- ants' "absolute right to seek appellate review of their con- victions," 17 N.Y.3d at 679, and stated: The invariable importance of the funda- mental right to an appeal, as well as the distinct role assumed by the Appellate Divisions within New York's hierarchy of appellate review (see N.Y. Const., art. VI, § 5; see e.g. CPLR 5501[c]), makes access to intermediate appellate courts imperative. 17 N.Y.3d at 680-681. And quoting Montgomery, it reiterated that: As a matter of fundamental fairness, all criminal defendants shall be permitted to avail themselves of intermediate appel- late courts as "the State has provided an absolute right to seek review in criminal prosecutions." 17 N.Y.3d at 682. It would be unconscionable to deny an indigent, inex- perienced defendant such a fundamental right simply because, relegated to proceeding pro se, he was unable to successfully articulate his ineffective assistance of counsel claim. In Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), the Supreme Court noted the particular problems pro se defendants experience when they seek to raise ineffective assistance of counsel claims. Finding "cause" to excuse a procedural de- fault for federal habeas corpus purposes if a State did not 30 provide counsel for a defendant raising an ineffective as- sistance claim for the first time, the Court noted that "[t]he prisoner, unlearned in the law, may not comply with the State's procedural rules or may misapprehend the sub- stantive details of federal constitutional law," and there- fore have "difficulty vindicating a substantial ineffective- assistance-of-trial-counsel claim." 132 S.Ct. at 1317. The review a pro se ineffective assistance claim receives "may not [be] sufficient to ensure that proper consideration was given to a substantial claim." 132 S.Ct. at 1318. This Court has repeatedly expressed solicitude for pro se defendants who diligently try, but fail, to compellingly articulate a constitutional claim. In particular, it has a long tradition of allowing pro se defendants numerous oppor- tunities to try vindicating their appellate rights. E.g., People v. Thomas, supra, 47 N.Y.2d at 40 (in estopping the People from enforcing the C.P.L. §460.30 time limit, noting that, "despite his due diligence, unschooled in the intrica- cies of appellate practice," Thomas had timely but unsuccess- fully sought relief three times); People v. Rivera, 39 N.Y.2d 519 (1976)(defendant who had obtained an appeal only "[f]ol- lowing a torturous series of motions" was entitled to relief when the minutes had been lost during the delay); People v. Lampkins, supra, 21 N.Y.2d 138 (coram available to seek rein- statement of dismissed appeal despite defendant's earlier, unsuccessful pro se efforts to obtain the same relief); People v. Adams, supra, 12 N.Y.2d 417; People v. Stanley, 31 supra, 12 N.Y.2d 250; People v. Pitts, 6 N.Y.2d 288 (1959)(in denying motion to dismiss appeal, noting that Pitts had made, "pro se, four separate motions," including for assignment of counsel). Indeed, the Court has allowed multiple coram nobis peti- tions on ineffective assistance issues when a defendant was relegated to proceeding pro se. See People v. Lassalle, 20 N.Y.3d 1024 (2013)(affirming the denial of a pro se coram nobis petition, but noting that Lassalle could file "a new coram nobis petition" asserting his claim of ineffective assistance of appellate counsel); People v. D'Alessandro, 13 N.Y.3d 216, 221 (2009)(when initial pro se coram was denied, Appellate Division had to fully entertain second coram, brought by counsel and raising "much more substantial," albeit related, arguments); People v. Turner, 5 N.Y.3d 476, 479 (2005)(defendant's second coram nobis petition, which was brought on a ground closely related to first, pro se, coram after a federal judge suggested Turner might prevail that way, was properly granted); see also People v. Ramsey, 23 N.Y.2d 656 (1968)(reversing the denial of second pro se coram nobis application); People ex rel. Sedlak v. Foster, 299 N.Y. 291 (1949)(defendant was not precluded from second coram, based on claimed deprivation of counsel at his guilty plea, when his first pro se coram had been denied). In D'Alessandro, supra, 13 N.Y.3d at 220-221, the Court noted that, at the least, courts have the discretion to en- tertain a second coram nobis petition brought on the same 32 ground as the first. If a second coram claiming that appel- late counsel improperly deprived a defendant of consideration of a particular issue is not barred by an unsuccessful first pro se coram, surely a second opportunity to claim that coun- sel deprived the defendant of his right to appeal in its entirety cannot, in fairness, be barred. See Roe v. Flores- Ortega, 528 U.S. 470, 483 (2000)(adopting a "presumption of prejudice" when "counsel's deficient performance has deprived [a defendant] of more than a fair judicial proceeding; that deficiency has deprived [him] of the appellate proceeding altogether"). Especially in combination, the fundamental importance of a New York defendant's right to appeal his conviction and the natural difficulty a pro se defendant may have in success- fully articulating a valid ineffective assistance of counsel claim militate strongly against the People's position that coram nobis relief is barred whenever a defendant unsuccess- fully sought relief under some other, previously-available avenue. Notably, the People have offered no countervailing policy reasons for denying coram relief to someone in Mr. Patel's situation, or for restricting the Appellate Divi- sion's power to "alleviate a constitutional wrong." Syville, supra, 15 N.Y.3d at 400. Finally, the rule the People urge would dramatically undermine the long-standing public policy that encourages defendants to act with diligence in pursuing their appellate rights, so appeals can be heard while the case remains fresh 33 and evidence available. See People v. Syville, supra, 15 N.Y.3d at 401-402 (noting, without deciding, the potential issue of whether a defendant "may be denied [coram nobis] relief based on a lack of due diligence in pursuing appellate rights"); see also Roe v. Flores-Ortega, supra, 528 U.S. at 485 (evidence that the defendant "promptly expressed a desire to appeal will often be highly relevant" in showing that counsel's failure to file a notice of appeal denied him the right to appeal). In numerous cases, this Court has con- sidered a pro se defendant's diligence in pursuing an appeal a positive factor, militating in favor of providing him re- lief. E.g., Johnson, supra; Thomas, supra; Rivera, supra; Lampkins, supra; Adams, supra; Stanley, supra; Pitts, supra. Under the rule the People seek, however, a defendant who attempts to learn the status of his appeal, and therefore discovers that no notice of appeal has been filed, within the one-year grace period of C.P.L. §460.30 and promptly but un- successfully moves for relief during that period would be forever barred from seeking coram relief. But the defendant who blithely sits back and does not bother investigating the matter for years could obtain coram consideration. Such a rule that effectively punishes a defendant for his diligence would be highly counter-productive as well as unfair. For all these reasons, the Court should reject the People's position that a prior, unsuccessful, pro se C.P.L. §460.30 motion deprived the Appellate Division of the power to grant Mr. Patel coram nobis relief. 34 B. The Appellate Division's Denial of Mr. Patel's C.P.L. §460.30 Motion Did Not Constitute "Law of the Case" so as to Preclude Coram Nobis Relief. Faced with the strong support Mr. Patel's correspondence with his attorney provided for his claim that counsel ignored his desire to appeal, the People focus on the weaker showing he made in his earlier pro se §460.30 motion. Without naming it, they essentially argue that the Appellate Division's previous denial of Mr. Patel's pro se §460.30 motion consti- tuted "law of the case." In their view, because the Appel- late Division was "justified" in denying the §460.30 motion, it lacked the power to reconsider the matter on Mr. Patel's fuller coram showing because, although he provided compelling additional evidence in support of his claim, he did not as- sert newly discovered "facts" (Peo's Br. at 28-34). For numerous reasons, that argument must be rejected. First, the law of the case doctrine (sometimes loosely referred to as "res judicata," People v. Evans, 94 N.Y.2d 499, 502-503 (2000)) obviously has no application here. Un- like true res judicata, governing whether an issue can be relitigated in a subsequent case, "law of the case" relates to reconsideration of an issue in the same case and does not "restrict [a court's] authority." Evans, 94 N.Y.2d at 503. Rather: law of the case . . . "expresses the practice of courts generally to refuse to reopen what has been decided, [and is] not a limit to their power." Evans, 94 N.Y.2d 503. The doctrine does not apply to suc- cessive coram nobis petitions. Syville, supra, 13 N.Y.3d at 35 216; People v. Mazella, 13 N.Y.2d 997, 998 (1963)("a denial of coram nobis relief is not res judicata [sic] as to a sub- sequent petition on the same grounds"). The People misquote the case on which they rely by omit- ting critical words. What the Court actually said in Matter of Dondi v. Jones, 40 N.Y.2d 8, 15 (1976), was that, absent exceptions: a motion once fully heard and decided cannot be revived again or renewed unless with leave of the court or Judge who denied it or if made upon presentation of new facts which have occurred since the denial of the previous motion (emphasis added). In the People's brief, the underlined words are replaced with ellipses, changing the entire tenor of the quote (Peo's Br. at 29). A single court always has the "inherent power to correct mistakes and errors in its judgments." Matter of Lyons v. Goldstein, 290 N.Y. 19, 26 (1943). Thus, contrary to the People's argument, the Appellate Division -- a single court, New York Constitution, Art. VI, §§1, 4 -- clearly had the power to correct its denial of relief to Mr. Patel based on the fuller showing, including documentary evidence, that he provided in his coram appli- cation. Indeed, for the reasons set forth in Section A, ante, a contrary holding would deny inexperienced pro se defendants like Mr. Patel a fundamentally fair opportunity to advance even the most compelling ineffective assistance of counsel claim. The adequacy or inadequacy of Mr. Patel's pro se §460.30 motion, and whether the Appellate Division's de- 36 nial of it was "justified" (Peo's Br. at 30) is irrelevant. Moreover, contrary to the People's suggestions, Mr. Patel's appeal has merit. The People assert, for example, that defense counsel did not file a notice of appeal because Mr. Patel had obtained a favorable plea bargain, since his Queens sentence would run concurrently with his Nassau County sentence, and because plea withdrawal would place him at risk (Peo's Br. at 31-32). Defense counsel filed a timely notice of appeal in the Nassau case, however, and Mr. Patel has persistently attempted to withdraw his Nassau guilty plea, see People v. Patel, supra, 74 A.D.3d 1098, which would benefit him fully only if he could withdraw his Queens guilty plea as well, since the Queens conviction alone would subject him to both an eight- year prison sentence and a SORA adjudication (A.11-12). In any event, whether to take the risk involved in plea withdrawal was Mr. Patel's decision, not counsel's. People v. Lampkins, supra, 21 N.Y.2d at 140; see generally Jones v. Barnes, 463 U.S. 745, 751 (1983); People v. Lassalle, supra, 20 N.Y.3d 1024. And the correspondence Mr. Patel submitted with his coram petition, as well as counsel's filing of a notice of appeal in the Nassau County case, compellingly supported his claim that he wished to appeal the Queens case all along. Notably, Mr. Patel repeatedly and explicitly complained to his attorney about the attorney's failure to file a notice of appeal in the Queens case (A.76, A.77A). In response, 37 counsel never denied Mr. Patel's claim that the failure to file it had been unethical. To the contrary, counsel re- sponded only with regard to the Nassau case, completely ig- noring Mr. Patel's key complaint even when Mr. Patel wrote again, specifically requesting a response to his previous letter (A.76-79A). This exchange tellingly revealed not only Mr. Patel's desire to appeal, but also counsel's evasiveness in response to Mr. Patel's complaint. It strongly suggests that counsel paid insufficient attention to Mr. Patel's de- sire to appeal initially. This additional evidence made Mr. Patel's coram petition far more substantial and compelling than the mere "recycling" of his §460.30 motion that the People claim it was (Peo's Br. at 28). Similarly, Mr. Patel's execution of an appeal waiver does not justify depriving him of his right to appeal (Peo's Br. at 32). A defendant's constitutional right to appeal exists not only for guilty plea as well as trial convictions, People v. Pollenz, 67 N.Y.2d 264 (1986), but also regardless of whether the defendant has executed a waiver of the right to appeal. People v. Callahan, 80 N.Y.2d 273, 284 (1992). It is improper for counsel to fail to protect his client's right to appeal "even when the right to appeal has been waived." People v. June, 242 A.D.2d 977 (4th Dept. 1997). Here, as Mr. Patel has asserted (A.42-43, see also A.87- 88), the court's oral waiver colloquy was insufficient and improperly "lumped" together his Grand Jury-related rights and his entirely separate right to appeal. In fact, the Ap- 38 pellate Division, Second Department, has twice recently held a similar appeal waiver by the same judge to be invalid. People v. Torres, 109 A.D.3d 669 (2d Dept. 2013)(noting that People "correctly concede" waiver was invalid); People v. Newsome, 106 A.D.3d 839, 840 (2d Dept. 2013). More important, even a valid waiver of the right to appeal would not foreclose issues relating to the validity of Mr. Patel's guilty plea. People v. Seaberg, 74 N.Y.2d 1, 10 (1989). Mr. Patel has repeatedly, if less than eloquently, protested that his plea was not entered knowingly, intelli- gently, and voluntarily. He did not need to "identify poten- tially meritorious issues that would be raised on appeal" to prevail on his coram nobis petition. Syville, supra, 15 N.Y.3d at 398; see Roe v. Flores-Ortega, supra, 528 U.S. at 485 (rejecting "any requirement that the would-be appellant 'specify the points he would raise'" on appeal); Campusano v. United States, 442 F.3d 770 (2d Cir. 2006)(even after a valid appeal waiver, and even if counsel believes no non-frivolous appellate issues exist, he is constitutionally ineffective if he declines to file a notice of appeal at his client's request). Here, in any event, the plea record reveals at least two significant issues that go to the essential validity of Mr. Patel's guilty plea: the absence of on-the-record advice about the Grand Jury-related rights he was waiving by agree- ing to proceed via a Superior Court information, and the 39 failure to inform him of any of the three basic Boykin rights. As embodied in the New York Constitution, Art. I, §6, indictment constitutes "a 'public fundamental right,' which is the basis of jurisdiction to try and punish an individu- al." People v. Boston, 75 N.Y.2d 585, 587 (1990). Before 1973, it could not be waived at all. People v. Trueluck, 88 N.Y.2d 546, 548 (1996); Boston, supra at 587-588. Even now, waiver "represents a departure" from a time-honored "consti- tutional safeguard and procedural sine qua non," Trueluck, supra at 548-549, making its validity jurisdictional, affect- ing "the organization of the court or the mode of proceedings prescribed by law." Boston, supra at 589, fn. 2. Therefore, an issue as to a waiver of indictment's validity is not fore- closed by a guilty plea, a preservation failure, or even a valid appeal waiver. People v. Zanghi, 79 N.Y.2d 815, 817 (1991). As with waivers of other important rights, having a de- fendant sign a written waiver in court is not, in and of itself, sufficient to insure that it was "obtained under constitutionally acceptable circumstances." See People v. Callahan, supra, 80 N.Y.2d at 283. That is especially so if, as in the instant case, the court fails to ask the defendant whether he even read the waiver before signing it (A.6-7). Here, the court provided no explicit oral mention, much less explanation, of the Grand Jury-related rights Mr. Patel was giving up. Nor did defense counsel state what he had told 40 Mr. Patel about these rights or voice his opinion that Mr. Patel understood what he was agreeing to relinquish. Thus, Mr. Patel's case obviously presents a viable issue as to whether the waiver of his Grand Jury-related rights was based on "an intelligent, informed judgment." People v. Duchin, 12 N.Y.2d 351, 353 (1963); see People v. Weinberg, 34 N.Y.2d 429 (1974)(for consent to prosecution on misde- meanor complaint to be knowing and intelligent, defendant must be informed of his right to insist on prosecution by information). Additionally, although the court told Mr. Patel he was giving up his "right to go to trial and all rights of trial" (A.8), it failed to inform him of any of the three "federal constitutional rights" set forth in Boykin v. Alabama, 395 U.S. 238, 243 (1969): the right to a jury trial, the privi- lege against compulsory self-incrimination, and the right to confront his accusers. "We cannot presume a waiver of these three important federal rights from a silent record." Boykin, 395 U.S. at 243. While the court need not provide "a specific recitation of rights and multiple explicit waivers," People v. Harris, 61 N.Y.2d 9, 18 (1983), this Court has never found a sufficient waiver of such rights if the court fails to mention any of them. To the contrary, it has recog- nized that a silent record "will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections." Harris, supra, 61 N.Y.2d at 17. 41 Especially in combination, the failure to advise Mr. Patel of any of the rights he was giving up by either agree- ing to proceed by means of a Superior Court information or by pleading guilty is surely enough to establish that the appeal he has so ardently pursued is non-frivolous. And while Mr. Patel did not need to specify issues he wished to raise, "evidence that there were non-frivolous grounds for appeal" can be "highly relevant" in determining whether defense counsel was ineffective in failing to protect his appellate rights. Roe v. Flores-Ortega, supra, 528 U.S. at 485. The People also assert that Mr. Patel's reliance on his attorney's failure to file a notice of appeal and failure to provide him with the requisite notice of his appellate rights was contradictory (Peo's Br. at 31). That argument is merely a distortion of a pro se litigant's difficulty expressing himself. See People v. Ramsey, supra, 23 N.Y.2d 656 (re- versing denial of coram on basis that it contradicted prior coram claim). Mr. Patel's claims might have been inartfully expressed, but they were not contradictory. Mr. Patel's attorney had an obligation to consult with him about a possible appeal and to file a notice of appeal if there was "reason to think" Mr. Patel "was interested in ap- pealing." Roe v. Flores-Ortega, supra, 528 U.S. at 480. Ob- viously, since counsel stressed at Mr. Patel's sentencing how intimately related the Queens and Nassau cases were (A.18), and filed a timely notice of appeal in the Nassau case 42 (A.77), counsel had every reason to think Mr. Patel was in- terested in appealing both cases. Mr. Patel's attorney also, however, had an obligation to provide him with written notice of his appellate rights under 22 N.Y.C.R.R. 671.3: Upon conviction in the trial court . . . it shall be the duty of counsel for the defendant, immediately after pronounce- ment of sentence . . . to give . . . written notice to his client advising him of his right to appeal . . . ; and re- questing his written instructions as to whether he desires to take an appeal. The rule provides that the notice "shall also set forth" both "the applicable time limitations" and "the manner of insti- tuting the appeal." 22 N.Y.C.R.R. 671.3(b)(1), (2). Contrary to the People's position (Peo's Br. at 31), that rule required written notice before counsel could walk away without filing a notice of appeal. The rule serves the salutary purpose of alerting a defendant that his attorney might have misunderstood his wishes and therefore does not plan to file a notice of appeal, so the defendant can timely follow up with counsel to make sure counsel understands that he wants to appeal. It also insures that the defendant receives the necessary instructions so that he can file a timely notice of appeal on his own if counsel fails to do so. Here, by failing to effectuate Mr. Patel's wishes, and also failing to provide the written notice to which Mr. Patel was entitled, his attorney deprived him of the opportunity to timely pursue his right to appeal either through counsel or on his own. Thus, Mr. Patel correctly complained about both 43 counsel's failure to file a notice of appeal in the Queens case and his failure to provide Mr. Patel with the required written notice so that Mr. Patel could timely attempt to effectuate his right to appeal either through further contact with counsel or on his own. See People v. Brun, 15 N.Y.3d 875 (2010)(when trial counsel's failure to comply with 22 N.Y.C.R.R. 671.3(f) deprived the defendant of counsel on the People's appeal, he was entitled to coram relief); cf., People v. O'Bryan, 26 N.Y.2d 95, 96 (1970)(when trial counsel declined to file a notice of appeal but advised the defendant of the 30-day time limit, the defendant was entitled to re- lief because his entitlement to the assistance of counsel "extends to assistance in serving and filing a notice of ap- peal").8 8 Additionally, the People argue that Mr. Patel failed to assert in his pro se §460.30 motion that he had asked his attorney to file a notice of appeal within 30 days of his sentencing, and that counsel would have been "unable to comply" with any later request (Peo's Br. at 30). But the attorney obviously knew Mr. Patel was interested in appeal- ing, since he filed a timely notice of appeal from his Nassau County case, which similarly involved a guilty plea (A.77). Moreover, even had Mr. Patel made a formal request to counsel after 30 days, counsel could have filed a prompt motion for leave to file a late notice of appeal rather than leaving an inexperienced defendant to flounder around pro se. Finally, the People fault Mr. Patel for failing to in- clude an affidavit with his §460.30 motion from the attorney he was calling ineffective (Peo's Br. at 30-31). But a de- fendant is not required to provide a supporting affidavit from counsel, who is by then in an adversary position. See People v. Stevens, 64 A.D.3d 1051, 1053n (3d Dept. 2009); People v. Radcliffe, 298 A.D.3d 533, 534 (2d Dept. 2002). In any event, the correspondence Mr. Patel provided on his coram showed that defense counsel failed to respond not only to Mr. Patel's complaints about counsel's failure to file a notice of appeal, but also to his request for an affidavit in rela- (continued...) 44 * * * In short, the People are clutching at hypertechnical straws in their continuing effort to deny Mr. Patel the appeal to which he is constitutionally entitled. This is especially unfortunate when the People participated in a guilty plea at which the court neither advised Mr. Patel orally of any of his Grand Jury-related or Boykin rights nor established that he had even read the waiver forms he signed (A.6-7). The People knew far better than Mr. Patel, a com- pletely inexperienced pro se litigant, that the plea was vulnerable to appellate attack. Yet at every turn they took advantage of his lack of eloquence and legal acumen to oppose his efforts to obtain an appeal, raising arguments he obvi- ously did not understand and was at a loss to refute. Had they not done so from the start, Mr. Patel's §460.30 motion might well have been granted in late 2007 or early 2008. For them to rely on Mr. Patel's loss of that motion now in seek- ing a reversal of his subsequent receipt of coram nobis relief seems extraordinarily unfair. For all these reasons, the Appellate Division's decision granting Mr. Patel's coram nobis petition and allowing him to appeal should be affirmed. 8(...continued) tion to his 440 motion. This was ample evidence that counsel had simply ignored Mr. Patel's desire to appeal in his Queens case. 45 CONCLUSION FOR THE REASONS STATED ABOVE, THE APPEL- LATE DIVISION'S GRANT OF CORAM NOBIS RELIEF TO RESPONDENT SHOULD BE AFFIRMED. Respectfully submitted, LYNN W. L. FAHEY APPELLATE ADVOCATES Attorney for Defendant- Respondent September 2013 46