The People, Appellant,v.Vinod Patel, Respondent.

Brief

N.Y.April 29, 2014

To be argued by JOHN M. CASTELLANO (TIME REQUESTED: 10 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, against VINOD PATEL, Defendant-Respondent. W444444444444444444444444444444444444444444444444444 BRIEF FOR APPELLANT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Appellant 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-5801 JOHNNETTE TRAILL JOHN M. CASTELLANO JOHN F. MCGOLDRICK Assistant District Attorneys Of Counsel JULY 22, 2013 Queens County Indictment Number 2473/06 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT PURSUANT TO RULE 5531 CPLR. . . . . . . . . . . . . . . . . . . . . . . . v PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 FACTUAL AND LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Crime, Arrest, and Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Plea and Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Defendant’s C.P.L. § 460.30 Motion to File a Late Notice of Appeal.. . . . 10 Defendant’s Coram Nobis Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT THE APPELLATE DIVISION ERRONEOUSLY GRANTED CORAM NOBIS RELIEF (A) BECAUSE THAT PROCEDURE IS NOT AVAILABLE, WHERE, AS HERE, A DEFENDANT CAN OBTAIN REVIEW OF HIS CLAIM UNDER THE C.P.L., AND (B) BECAUSE, EVEN IF FURTHER REVIEW WERE AVAILABLE, DEFENDANT’S INCONSISTENT ALLEGATIONS AND FAILURE TO SUPPORT HIS CLAIMS MANDATED DENIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. Coram Nobis Was Not Available to Review Defendant’s Claim Because He Had, and Used, a Procedure for Obtaining Review Under the C.P.L. . . . . . . . . . . . . . . . . . . . . . . . . . 18 B. Even If Review of Defendant’s Claim Were Available in a Coram Nobis Petition, the Appellate Division Erred in Granting Relief Under the Facts of This Case. . . . . . . . . . . . . . . . . . 28 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 ii TABLE OF AUTHORITIES Page No. Cases Evitts v. Lucey, 469 U.S. 387 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Matter of Dondi v. Jones, 40 NY2d 8 (1976). . . . . . . . . . . . . . . . . . . . . 5, 29, 30n.8 Matter of Lyons v. Goldstein, 290 N.Y.19 (1943). . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Adams, 12 N.Y.2d 417 (1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Bachert, 69 N.Y.2d 593 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . 4, 19, 22 People v. Calloway, 24 N.Y.2d 127 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Corso, 40 N.Y.2d 578 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 People v. De Renzzio, 14 N.Y.2d 732 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Evans, 94 NY2d 499 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Hairston, 10 N.Y.2d 92 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Lampkins, 21 N.Y.2d 138 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Montgomery, 24 N.Y.2d 130 (1969). . . . . . . . . . . . . . . . . . . . . . 20, 21, 24 People v. O’Bryan, 26 N.Y.2d 95 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Patel, 10 N.Y.3d 962 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. Patel, 20 N.Y.3d 934 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Patel, 74 A.D.3d 1098 (2d Dept. 2010). . . . . . . . . . . . . . . . . 9n.4, 32n.10 iii People v. Patel, 97 A.D.3d 701 (2d Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Syville, 15 N.Y.3d 391 (2010).. . . . . . . . . . . . . . . . . . . . . 4, 13, 23, 26, 31 People v. Thomas, 47 N.Y.2d 37 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23, 24 Ross v. Moffitt, 417 U.S. 600 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Statutes C.P.L. § 460.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 C.P.L. § 440.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13n.6, 20 C.P.L. § 460.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Penal Law § 130.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9n.4 Penal Law § 130.50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9n.4 Penal Law § 255.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9n.4 Penal Law § 263.16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Penal Law § 70.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Penal Law § 70.80. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32n.10 iv COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against - : VINOD PATEL, : Defendant-Respondent. : ----------------------------------------------------------------------x STATEMENT PURSUANT TO RULE 5531 CPLR 1. The Indictment Number of the case is 2473/06 (Queens County). 2. The full names of the parties are the People of the State of New York against Vinod Patel. 3. This action was commenced in the Supreme Court, Queens County. 4. The action was commenced by the filing of a felony complaint on March 14, 2006. 5. This appeal is from an order of the Appellate Division, Second Department dated July 11, 2012, granting coram nobis relief to defendant and deeming timely filed defendant’s late Notice of Appeal. 6. The appendix method of appeal is being used. v COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : VINOD PATEL, : Defendant-Appellant. : -------------------------------------------------------------------- x BRIEF FOR APPELLANT PRELIMINARY STATEMENT The People appeal from an order of the Appellate Division, Second Department, dated July 11, 2012, granting coram nobis relief to defendant and deeming timely filed defendant’s late Notice of Appeal. The underlying judgment from which an appeal had been sought by defendant was rendered in the Supreme Court, Queens County, upon defendant’s plea of guilty, on February 6, 2007, convicting him of two counts of Possessing a Sexual Performance by a Child, and sentencing him to two consecutive terms of one and one-third to four years’ incarceration. A judge of this Court granted the People leave to appeal on November 27, 2012. Defendant is currently incarcerated pursuant to the judgment of conviction. QUESTION PRESENTED Is a defendant who claims that his attorney was ineffective for failing to file a Notice of Appeal entitled to merits review of his claim in the Appellate Division twice – once in a motion to file a late Notice of Appeal under C.P.L. § 460.30 and then again in a coram nobis petition – even though this Court has repeatedly held that coram nobis only lies where necessary to review a claim that cannot otherwise be addressed by statute? INTRODUCTION Between the dates of September 21, 2005, and March 2, 2006, defendant possessed, on his work computer at a Field Office of the Department of Transportation, ten images and a video of various acts of oral sex and intercourse between adults and children under the age of 15. He was charged with 11 counts of Possessing a Sexual Performance By a Child, a Class E felony, and eventually pleaded guilty to a Superior Court Information charging two counts of that crime. At the plea proceeding, defendant signed and orally acknowledged that he was waiving his right to appeal. Defendant was sentenced, pursuant to his plea agreement, to two terms of one and one-third to four years, to run consecutively to each other but concurrently with an aggregate determinate sentence of 15 years’ incarceration imposed under a 2 Nassau County conviction for Rape in the First Degree, two counts of Criminal Sexual Act in the First Degree, and Incest in the Third Degree. By law, defendant’s1 sentence on the Queens case merged into, and was subsumed by, the Nassau County sentence. Ten months later, defendant moved in the Appellate Division pursuant to section 460.30 of the C.P.L. to file a late Notice of Appeal in the Queens case claiming that, even though he had received a favorable plea bargain and waived his right to appeal in the trial court, he nevertheless directed his attorney to file a Notice of Appeal and counsel failed to do so. Defendant made no allegation, however, as to whether he made that request within the 30-day jurisdictional time period in which to file a Notice of Appeal. The People opposed the motion on the ground that the allegation was entirely unsupported, except by defendant’s own bare assertion, and that it was unlikely to be true given the favorable plea and the waiver of appeal. Defendant had made his motion within section 460.30's one-year jurisdictional time limitation and the People raised no procedural bar to review of the claim. The Appellate Division denied the motion. Defendant’s later motion for reargument was also denied. Defendant had been convicted on January 11, 2007, in Nassau County, of these crimes and1 was sentenced to 15 years on the rape conviction, 15 years on each of the counts of criminal sexual act in the first degree, and one and one-third to four years for the incest conviction 3 More than three years later, defendant brought a coram nobis petition in the same court on the same ground. The People objected because defendant had already obtained merits review of his claim under section 460.30 and because he was not entitled to coram nobis relief, which this Court has only invoked when necessary to review a claim that cannot otherwise be addressed by a statutory procedure. The Appellate Division, however, granted the coram nobis petition and deemed defendant’s late Notice of Appeal to be timely filed. The Appellate Division erred in granting coram nobis relief. Defendant had obtained full review of his claim in his section 460.30 motion, obviating the need for any further review by coram nobis, particularly review outside the jurisdictional time limitation imposed under section 460.30. Given this Court’s repeated rulings over the last 70 years holding that coram nobis exists only to provide review where none is otherwise available under the C.P.L., see People v. Bachert, 69 N.Y.2d 593 (1987), the Appellate Division erred in providing this second avenue of relief to defendant. Moreover, this Court’s decision in People v. Syville, 15 N.Y.3d 391 (2010), cited by the Appellate Division, created only a narrow exception to the jurisdictional time limitations of section 460.30 and that exception was specifically limited by this Court to situations in which the defendant did not and could not have raised the issue within the one-year time period. Thus, Syville in no way supports 4 defendant’s claim here; indeed, by specifically limiting the exception that it created, it supports the opposite conclusion. Because review under coram nobis was not available to defendant, the order of the Appellate Division granting coram nobis relief must be reversed on this ground alone. But even if defendant could properly raise this claim in a coram nobis petition under these circumstances, the Appellate Division’s decision to grant that relief here would still be erroneous. First, a panel of the same court had already rejected the precise same claim, and the coram nobis court should not have disturbed a ruling of a court or panel of coordinate jurisdiction in the absence of some new allegation that could not have been made in the original motion. See Matter of Dondi v. Jones, 40 NY2d 8, 15 (1976). Second, as the 460.30 court undoubtedly recognized, defendant’s assertion that he had told counsel to file a Notice of Appeal was exceedingly weak. That allegation was supported only by his own bare assertion; notably, defendant never filed an affidavit of counsel, as had both defendants in Syville. Defendant had also pleaded guilty under a highly favorable plea agreement and waived his right to appeal, again unlike the Syville defendants, who had both been convicted after trial. And the People opposed coram nobis relief here, unlike in Syville, where the People conceded that coram nobis relief should be granted and failed to preserve any contrary contention. 5 Thus, the coram nobis court improperly held that defendant could raise and obtain a merits adjudication of the same claim for a second time in a coram nobis petition. And, even if the court had been correct in that regard, the coram nobis court erroneously concluded that defendant had sufficiently supported the allegations necessary to establish ineffective assistance of counsel. FACTUAL AND LEGAL BACKGROUND The Crime, Arrest, and Charges On March 2, 2006, defendant’s supervisor observed images of child pornography on a computer used by defendant at the New York State Department of Transportation Field Office at 219-03 Northern Boulevard in Queens County (Criminal Court Complaint, 2006QN013516, p. 1) (A2-4). Defendant’s supervisor2 called the police and consented to the seizure of the computer and related items. A search warrant was issued that same day authorizing a forensic examination of the computer (Complaint, p. 1) (A2). That examination revealed nine photos of girls under the age of 15 engaging in oral sex and acts of intercourse, an image of two boys under 15 engaging in oral sex, and a video of a girl under the age of 6 engaging in sexual intercourse with a female (Complaint, pp. 1-2) (A2-3). The computer also Page numbers preceded by an A refer to pages of the Appellant’s Appendix accompanying2 this brief. 6 contained a photo of defendant with one of the underage girls depicted in the child pornography (Complaint, p. 2) (A3). One of the files was placed on the computer on September 12, 2005, and another on October 5 of that year, both dates on which theth defendant was on duty at the field office (Complaint, p. 2) (A3). As a result, defendant was arrested and charged with eleven counts of Possessing a Sexual Performance By a Child (Penal Law § 263.16) (Queens County Docket Number 2006QN013516). Contemporaneously, defendant was arrested and charged in Nassau County with Rape in the First Degree (Penal Law § 130.35[4]) (victim less than 11 years old), Criminal Sexual Act in the First Degree (Penal Law § 130.50) (victim less than 13), and Incest in the Third Degree (Nassau County Case Numbers 2006NA005046-47). The Plea and Sentence On September 21, 2006, defendant appeared with counsel, Robert Gottlieb, Esq., before the Honorable Dorothy Chin-Brandt of the Supreme Court, Queens County. Pursuant to a plea agreement, defendant waived prosecution by indictment, and pleaded guilty to two counts of Possession of a Sexual Performance By a Child (Penal Law § 263.16) (Queens County Superior Court Information Number 2473/06). 7 The court confirmed that defendant wished to plead guilty to two counts of Possession of a Sexual Performance by a Child, and confirmed that he was pleading guilty voluntarily (P3-4) (A7-8). Defendant additionally affirmed that he3 had spoken with his attorney about entering the guilty pleas and understood that he was giving up his right to go to trial and his other trial rights (P4) (A-8). Defendant then admitted that on or about September 12, 2005, he knowingly possessed or controlled computer files, which contained an image of a child under the age of fifteen engaged in oral sex, and on October 5, 2005, he possessed a computer file that contained an image of a female child under the age of fifteen engaged in sexual intercourse (P5-6) (A9-10). Defendant admitted that he had maintained these files at the New York State Department of Transportation Offices in Queens County (P6) (A10). Defendant also signed and orally acknowledged his understanding of a waiver of his right to appeal (P2) (A6). In the written waiver, he stated that he had been advised of his right to appeal and that he waived that right, including the right to submit a brief and have oral argument before an appellate court (see Waiver of Right to Appeal and Other Rights, Ind. No. 2473/06, signed 9/21/06) (A13). Numbers precede by P refer to the plea minutes in this case, dated September 21, 2006 (A5-3 12). Numbers preceded by S refer to the pages of the sentencing minutes dated February 6, 2007. 8 Defendant orally acknowledged that he had signed the waiver of appeal with his lawyer standing beside him (P2) (A6). The court additionally asked, “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?” Defendant stated, “Yes” (P3) (A7). The court then determined that the waiver was knowingly and voluntarily executed by defendant (P3) (A7). On February 6, 2007, in accordance with the plea agreement, the court sentenced defendant to an indeterminate prison term of from one and one-third to four years’ incarceration on each count, to run consecutively with each other and concurrently with defendant’s Nassau County sentences for first-degree rape, two counts of first-degree criminal sexual act, and third-degree Incest (Nassau County Indictment No. 0235N/2006) (S6) (A19). Defendant had received concurrent4 sentences in that case with a maximum determinate term of 15 years and five years of post-release supervision. At the time of sentence, the prosecutor filed an affirmation with the court recounting additional facts of defendant’s crime for the Defendant had pleaded guilty in Nassau County on November 30, 2006, to first-degree rape4 of a victim less than eleven years of age (Penal Law § 130.35[4]); first-degree criminal sexual act on a victim less than thirteen years of age (Penal Law § 130.50); and Incest (Penal Law § 255.25)(Indictment No. 0235N/2006). Defendant did not waive appeal in that case, filed a Notice of Appeal, and his conviction was eventually affirmed. People v. Patel, 74 A.D.3d 1098 (2d Dept. 2010). 9 review of the Board of Sex Offender Examiners and the Parole Board (S2-3) (A15- 16). 5 Defendant’s C.P.L. § 460.30 Motion to File a Late Notice of Appeal Defendant failed to file a Notice of Appeal within the 30-day jurisdictional time limit. See C.P.L. § 460.10. Ten months after sentence, however, defendant filed a motion pursuant to section 460.30 of the Criminal Procedure Law for permission to extend the time in which to take an appeal. At the same time, defendant also applied for poor person relief and appointment of counsel. Defendant filed his motion on December 2, 2007, less than a year after his February 6, 2007, sentencing, and within the one-year grace period provided by section 460.30. In his pro se section 460.30 motion, defendant argued that he had failed to file a timely Notice of Appeal because his attorney acted improperly in that counsel “forgot that defendant had requested that he file notice.” Affidavit in Support of Motion for Extension of Time to Take Appeal C.P.L. § 460.30, dated Nov. 8, 2005, par. 5 (A23). He also complained that his attorney had failed to notify him in writing of his right to appeal his conviction. Id. at par. 6 (A24). That document was placed under seal but is available to this Court upon request. 5 10 The People opposed defendant’s application, making the following arguments. First, ten months had passed since defendant’s sentence and he had nevertheless failed to set forth any sworn credible allegations of fact or documentary proof to justify an extension. Second, defendant’s motion was self-serving, unsupported, and self-contradictory because he claimed that he had informed his attorney that he wanted to take an appeal, while, at the same time, he claimed that he should be permitted to file a late notice because his attorney had failed to notify him in writing that he could take an appeal. Third, the People pointed out that defendant’s claim that counsel “forgot” to file notice was incredible. Defendant’s execution, in open court, of the appeal waiver, and the forfeiture of most claims by the plea itself, supported the overwhelming inference that counsel and defendant together made a decision not to take an appeal. See Affirmation in Opposition to Defendant’s Application to File a Late Notice of Appeal, dated Nov. 21, 2005 (A35-37). In a January 11, 2008, decision, the Appellate Division denied defendant’s motion to file a late Notice of Appeal and for poor person relief. See Decision and Order on Motion to Serve Late Notice of Appeal, dated January 11, 2008 (A39). 11 On January 22, 2008, defendant filed a motion for reconsideration of the Appellate Division’s decision denying his section 460.30 motion for an extension of time in which to take an appeal. See Notice of Motion and Affidavit in Support of Motion For Reconsideration, dated January 22, 2008 (A40-51). Defendant argued that, because a year had not yet elapsed, the Appellate Division could grant his motion. Defendant also reiterated his argument that counsel had failed to give him proper written notice of his right to appeal, and contended that counsel had failed to discuss the issue with him. Defendant claimed that counsel “coerced” him to sign the waiver and argued that his admission that he had discussed the waiver with his attorney was inadmissible hearsay. The People opposed the application (A52-55), and the Appellate Division denied defendant’s motion for reconsideration on March 21, 2008, Decision and Order on Motion for Reconsideration, dated March 21, 2008 (A56). Defendant, pro se, then petitioned for leave to appeal to this Court. On July 8, 2008, this Court dismissed defendant’s application as the order sought to be appealed was not appealable. People v. Patel, 10 N.Y.3d 962 (2008). 12 Defendant’s Coram Nobis Petition On October 21, 2011, three and one-half years after the Appellate Division’s denial of reconsideration of his 460.30 motion, petitioner filed a coram nobis petition in the Appellate Division raising the same claims (A57-69). 6 According to defendant, defense counsel was aware that defendant wanted to appeal the conviction, but failed to file a Notice of Appeal, rendering his performance constitutionally deficient. See Affidavit in Support of Common-Law Writ of Error Coram Nobis, dated Oct. 21, 2011, par. 9 (A60). He also again complained that counsel failed to provide any written notice to defendant about his right to appeal. Id. In support of his claim, he cited this Court’s decision in People v. Syville, 15 N.Y.3d 391 (2010), which held that coram nobis relief was available to a defendant who had requested that counsel file a Notice of Appeal and was unaware, within the one-year time limitation of section 460.30, that his counsel had failed to comply with that request. On April 26, 2012, the People opposed defendant’s application. See Affirmation in Opposition to Defendant’s Application for a Writ of Error Coram In the interim, defendant had filed two motions to vacate his conviction under C.P.L. §6 440.10 and a motion to set aside his sentence under section 440.20. All of these motions were denied (A87-95). See Affirmation in Opposition to Defendant’s Application for a Writ of Error Coram Nobis, dated April 26, 2012. 13 Nobis, dated April 26, 2012 (A82-104). The People argued that a statutory avenue of relief, of which the defendant had previously availed himself, had already been provided for the claim under section 460.30, and thus that coram nobis relief was unavailable to defendant. Id. at par. 35 (A96). The prosecution noted that although Syville had created an exception to 460.30 allowing review in a coram nobis petition, it had done so only to alleviate a constitutional wrong where defendants had no other procedural recourse. Memorandum of Law in Opposition to Coram Nobis Petition at 19-20 (A101). The People concluded, “Because defendant had an avenue for his claim and sought redress under section 460.30, defendant is barred from raising this claim in a petition for a writ of error coram nobis.” Id. at 20 (A101). Additionally, the prosecution noted that the Appellate Division had previously rejected defendant’s same claims in his 460.30 motion. The prosecution pointed out that the court necessarily concluded at that time that defendant had failed to sustain his claim. The People also argued that under the facts of this case, defendant and counsel intentionally decided not to pursue an appeal. Counsel negotiated a lenient plea bargain under which defendant would receive concurrent time with the more serious Nassau County charges, resulting in no additional incarceration whatsoever 14 on the Queens County charges. Defendant had also waived appeal, unlike in the Nassau County case. This, the People argued, demonstrated that defendant did not wish to appeal because he would have been restored to his pre-pleading status and would have risked consecutive time and far greater punishment for his Queens crimes. Id. at 21 (A102). Finally, the People noted that defendant had presented inconsistent claims, asserting both that he had told his attorney that he wished to pursue an appeal and that he never received written notice of his right to appeal. Id. at 20-21 (A101-02). On April 26, 2012, defendant filed a reply to the People’s opposition. In it, defendant stated that he had been misled into believing that a Notice of Appeal had been filed in the Queens County case, when one had only been filed in the Nassau County case. See Verified Reply for Common-Law Writ of Error Coram Nobis, dated April 26, 2012, at 2 (A71-81). He also asserted that his attorney had failed to inform him of his right to appeal in Queens. Id. at 2 (A72). On July 11, 2012, the Appellate Division granted coram nobis relief, deeming defendant’s Notice of Appeal timely filed. See People v. Patel, 97 A.D.3d 701 (2d Dept. 2012) (A105). 15 On November 27, 2012, a judge of this Court granted leave to appeal. People v. Patel, 20 N.Y.3d 934 (2012) (A1). ARGUMENT THE APPELLATE DIVISION ERRONEOUSLY GRANTED CORAM NOBIS RELIEF (A) BECAUSE THAT PROCEDURE IS NOT AVAILABLE, WHERE, AS HERE, A DEFENDANT CAN OBTAIN REVIEW OF HIS CLAIM UNDER THE C.P.L., AND (B) BECAUSE, EVEN IF FURTHER REVIEW WERE AVAILABLE, DEFENDANT’S INCONSISTENT ALLEGATIONS AND FAILURE TO SUPPORT HIS CLAIMS MANDATED DENIAL. The Appellate Division erred in granting coram nobis relief to defendant for two separate and independent reasons. First, the court incorrectly concluded that defendant’s claim was reviewable in a coram nobis petition. This Court has invoked coram nobis only where statutory procedures fail to provide a remedy to address a constitutional wrong. Here, defendant had already sought and obtained review of the merits of his claim in a motion under section 460.30 of the Criminal Procedure Law and, thus, coram nobis was neither necessary nor available for a second round of merits review. Second, even if review were available in a coram nobis petition, the Court erred in finding a sufficient basis for relief. Initially, a panel of the same court 16 had previously rejected defendant’s claims, and the coram nobis court should not have disturbed that ruling absent new allegations that could not previously have been made. Moreover, as the 460.30 court undoubtedly concluded, defendant’s claims were both inconsistent and unsupported. Defendant claimed both that he had told counsel that he wished to pursue an appeal and that he had never received notice making him aware that he had a right to appeal. Further, the assertion that defendant told counsel he wished to appeal, only moments after accepting a highly favorable plea bargain and acknowledging that he understood that he was waiving his right to appeal, was highly implausible, and was made all the more unlikely by his inconsistent assertion that he did not know he had a right to appeal. Thus, the 460.30 court had ample ground to reject defendant’s claims, and the coram nobis court should not have overturned that determination. Because review in a coram nobis petition was not available to defendant here and because, even if it were, he failed to make out a claim that would require a new appeal, the order of the Appellate Division granting coram nobis relief should be reversed. 17 A. Coram Nobis Was Not Available to Review Defendant’s Claim Because He Had, and Used, a Procedure for Obtaining Review Under the C.P.L. The Appellate Division erred in holding that the writ of error coram nobis could be used to address defendant’s claim because defendant already had available to him, and previously used, a statutory remedy for review of his claim. Over the past 70 years, this Court has invoked coram nobis where due process requires that a remedy be provided to a defendant but no other procedure is available to address that claim. Indeed, as detailed below, this Court has so held on many occasions, both before and after the passage of the C.P.L., and the writ’s current uses are confined to situations in which the C.P.L. otherwise offers no remedy to a defendant. Here, section 460.30 specifically covers the type of error alleged by defendant. Moreover, defendant made a motion under that statute, and he obtained merits review of his contention, although he was ultimately unsuccessful. Because due process requires nothing more than a single opportunity to present a claim and because coram nobis is limited to situations in which no other review is available, defendant here was not entitled to a second round of review. Accordingly, the Appellate Division erred in granting coram nobis relief for this reason alone. 18 In 1943, this Court resurrected the ancient writ of error coram nobis to provide a remedy where necessary to effectuate due process because no other remedy or procedure was available. In Matter of Lyons v. Goldstein, 290 N.Y.19 (1943), the Court held that although a defendant otherwise had no remedy to reopen a judgment on the ground that it was procured by fraud or misrepresentation, due process required that a remedy be provided and this Court adopted coram nobis for that purpose. The writ was initially used to address errors at trial. See People v. Bachert, 69 N.Y.2d 593 (1987). Later, the writ was applied to certain errors in the appellate process “when necessary to afford the defendant a remedy in those cases in which no other avenue of judicial relief appeared available." People v Hairston, 10 N.Y.2d 92, 93-94 (1961). Thus, because no other provision or remedy would provide relief, this Court held that a motion for a writ of error coram nobis lies where a court-appointed lawyer failed to prosecute an existing appeal, People v De Renzzio, 14 N.Y.2d 732 (1964); People v Adams, 12 N.Y.2d 417 (1963); where correction authorities interfered with efforts to perfect an appeal, People v Hairston, 10 N.Y.2d at 92; and where counsel failed to prosecute the appeal despite the appellant's wishes that he do so, People v Lampkins, 21 N.Y.2d 138 (1967). 19 Later, the Court applied coram nobis where the deficiencies of counsel prevented the defendant from filing a Notice of Appeal in the first place. Thus, in People v. Montgomery, 24 N.Y.2d 130 (1969), this Court invoked coram nobis where a defendant was not informed of his right to appeal, holding that, if defendant proved his claim, he would be entitled to re-sentencing so that he would have an additional period in which to file a Notice of Appeal, consistent with statutory requirements. No statutory remedy was available for such a claim at that time. The Court also applied the remedy devised in Montgomery to situations in which counsel assured defendant that he would file a Notice of Appeal, People v. Calloway, 24 N.Y.2d 127 (1969). Similarly, in People v. O’Bryan, 26 N.Y.2d 95 (1970), the Court provided Montgomery relief where counsel, although informing defendant of his right to appeal, refused to file one with the court. Shortly after these cases, the Legislature passed the Criminal Procedure Law, which sought, through different statutory provisions, to address many of the claims previously brought under coram nobis. Thus, section 440.10 addressed claims directed at errors in the trial court, including claims of fraud and misrepresentation and other constitutional and statutory failings. At the same time, section 440.10 created procedural bars limiting the relief available. See, e.g., C.P.L. § 440.10(2)(a)- 20 (c) (precluding relief where the issue was or could have been raised on direct appeal); 440.10(3)(a) (authorizing denial where the issue was or could have been raised in a prior motion or proceeding). To address situations like those in Montgomery and its progeny where counsel’s conduct has prevented the filing of a Notice of Appeal, the Legislature enacted section 460.30. That section provides that a defendant may move to file a late Notice of Appeal where his failure to file the notice within the 30 days mandated by statute was due to “improper conduct, death or disability of the defendant’s attorney.” As this Court expressly held in People v. Thomas, 47 N.Y.2d 37, 42 (1979), section 460.30 “‘plainly and precisely deals with and encompasses the relief’ provided in People v. Montgomery (24 NY2d 130).” Similarly, this Court held in People v. Corso, 40 N.Y.2d 578, 580 (1976), “applications seeking Montgomery relief are encompassed by C.P.L. § 460.30 and should be brought in the manner prescribed in that section.” As it had done under section 440.10, the Legislature imposed procedural limitations in section 460.30 that did not previously exist. The section requires that the motion be made no later than one year “after the time for taking such an appeal has expired.” C.P.L. § 460.30. As this Court has recognized, by virtue of this 21 provision, Montgomery claims previously not subject to any specific time limitation, became so by the passage of section 460.30. See People v. Corso, 40 N.Y.2d at 581. That limitation is to be strictly construed since the “time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them.” Thomas, 47 NY2d at 43. After the passage of the Criminal Procedure Law, this Court has authorized the use of coram nobis only in limited and narrow circumstances where no remedy was available under the C.P.L.. Thus, in People v. Bachert, 69 N.Y.2d at 593, this Court held that a defendant seeking to raise a claim of ineffective appellate counsel could bring a coram nobis petition in the Appellate Division because of “the absence of a codified form of relief.” Id. at 596. The Court held that section 440.10 was directed solely at underlying convictions and not the appellate process and that no other provision of the C.P.L. provided a means to address a claim of ineffective appellate counsel. Given defendant’s undisputed right to effective counsel on appeal and the lack of any statutory remedy, this Court concluded that coram nobis was available. This Court has also authorized the use of coram nobis for Montgomery- type claims after the passage of section 460.30 but only in two narrow instances 22 where no other recourse is available. First, in People v. Thomas, 57 N.Y.2d at 42, the Court authorized use of the procedure, outside the statutory time limit, where, due to the action or inaction of a prosecutor, defendant’s diligent good faith efforts to exercise his right to appeal were thwarted. Second, in People v. Syville, 15 N.Y.3d at 391, this Court authorized coram nobis outside the statutory time limit where a defendant requests that counsel file a Notice of Appeal and counsel fails to do so, provided that the defendant did not and could not have discovered the error within the statutory time period. Under these circumstances, defendants have no opportunity to avail themselves of the statutory procedure. In searching for a remedy for this error, the court noted that coram nobis was historically available “to alleviate a constitutional wrong when a defendant has no other procedural recourse.” Id. at 400. Accordingly, this Court held that “consistent with the due process mandate, we recognize the need for a second exception.” Id. at 399. The Court contemplated that “it will be a rare case where this exception must be utilized” because in most cases defendants are in a position to discover the omission within the statutory time period and can use section 460.30 to raise their claim. Id. at 400, n. 2. 23 As Syville illustrates, the modern usage of coram nobis has been limited to situations in which the defendant has no other recourse. Indeed, the Syville Court resorted to the use of coram nobis to raise a Montgomery-type claim precisely because the defendants in that case could not have used the statutory procedure and due process demanded that some remedy be provided. Moreover, the Court specifically contemplated that the procedure to be used where the error was discovered on time would be the statutory remedy. Here, the remedy of coram nobis was not available because petitioner had a statutory procedure to raise his claim and in fact used that procedure to obtain merits review of his contention. First, petitioner had the remedy provided by section 460.30 available to him. There is no question that section 460.30 encompasses the relief sought here. See People v. Thomas, 47 N.Y.2d at 42 (section 460.30 “‘plainly and precisely deals with and encompasses the relief’ provided in People v. Montgomery (24 NY2d 130)”). Indeed, as noted above, this Court specifically observed in Syville that in most cases, section 460.30 will be adequate to raise this issue because, like defendant here, “most defendants are in a position to discover the omission [to file a Notice of Appeal] within the grace period.” 15 N.Y.3d at 440, n. 2. Thus, given that defendant discovered the failure to file the Notice of Appeal 24 within the one-year period, defendant had ample opportunity to raise his claim in a 460.30 proceeding. Second, in this case, defendant in fact made a motion under section 460.30 raising his claim, which the Appellate Division denied on the merits. In that motion, defendant repeated the allegations contained in the coram nobis petiton, claiming in both that he was entitled to pursue his appeal because (a) he had told his attorney to file a Notice of Appeal and counsel neglected to do so; and (b) that he had never been informed in writing of his right to appeal. See Affidavit in Support of Motion for Extension of Time to Take Appeal C.P.L. § 460.30, par. 5 (A23) (“Attorney forgot that defendant requested to file notice of appeal”; “Counselor failed to notify defendant in writting [sic]” of his right to appeal although he was required to do so); Affidavit in Support of Common-Law Writ of Error Coram Nobis, dated October 21, 2011, par. 9 (A60) (“Defense counsel was aware that defendant wanted to appeal . . . but failed to file in Queens case”; counsel “failed to give any written notice about appeal and also failed to file a Notice of Appeal”). Moreover, the 460.30 court necessarily reviewed defendant’s contention on the merits: defendant had avoided the sole procedural impediment to review under 460.30 by filing within the one year specified by statute and the People raised no procedural bar or limitation to 25 review in their response, maintaining only that defendant’s allegations were contradictory and unsupported. Because defendant had ample opportunity to raise his claim via section 460.30 and in fact obtained review in that fashion, coram nobis relief was not available. Indeed, the consistent rationale of this Court’s decisions invoking coram nobis relief as a remedy is the need to address a claim that cannot otherwise be heard. Here, by providing the remedy of coram nobis where defendant already had and used an equivalent remedy under section 460.30, the Appellate Division contravened this Court’s unerring precedent over the last 70 years. Moreover, the only case upon which the coram nobis court relied, People v. Syville, 15 N.Y.3d at 391, does not support that court’s determination. Indeed, Syville supports just the opposite conclusion: Syville invokes coram nobis relief because due process demanded a remedy to address defendants claims where no other remedy was available. As this Court explained, “the writ continues to be available to alleviate a constitutional wrong when a defendant has no other recourse.” 15 N.Y.3d at 400. Here, unlike in Syville, defendant had and used another procedure to forward his claim. He was not entitled to a second opportunity to advance it. 26 Moreover, due process has never required more than one fair opportunity to present a claim. In Evitts v. Lucey, 469 U.S. 387, 405 (1985), the Supreme Court, recognizing the right to counsel on a first appeal as of right, explained the requirements of that clause: “"'Due Process' emphasizes fairness between the State and the individual dealing with the State,” and requires reversal where a state “set[s] up a system of appeals as of right but refuse[s] to offer each defendant a fair opportunity to obtain an adjudication on the merits . . . .” Id. at 403; see also Ross v. Moffitt, 417 U.S. 600 (1974) (due process does not require that defendants be provided counsel on a second-level, discretionary appeal). Here defendant had a fair opportunity to present his claim; once he discovered that no notice had been filed, the C.P.L. afforded him a procedure to present his argument, the appellate court reviewed that excuse, and the court rejected the reason that defendant offered on the merits. Due process required no more. Because defendant had a full and fair opportunity to present his claim, and because defendant sought a second merits adjudication of his contention after having already had one, coram nobis relief was not available to defendant. Accordingly, the Appellate Division order granting coram nobis relief should be reversed on this ground alone. 27 B. Even If Review of Defendant’s Claim Were Available in a Coram Nobis Petition, the Appellate Division Erred in Granting Relief Under the Facts of This Case. Even if the Appellate Division could properly review defendant’s claim in a coram nobis petition, that Court acted improperly in granting relief in this case. First, the coram nobis court should not have disturbed the determination of the 460.30 court – which reviewed the same allegations in the same case – in the absence of new factual assertions that could not previously have been made. No such assertions were made here. Moreover, defendant’s recycled allegations were inconsistent, at once asserting that defendant told counsel to pursue an appeal while at the same time complaining that he had not properly been informed of his right to appeal in the first place. This alone provided ample ground for denial. In addition, there was no evidence to support defendant’s own bare assertion that he had told counsel to file a Notice of Appeal – in contrast to Syville, where the defendants provided affidavits of counsel corroborating their claims. Still further, as the prior panel considering the 460.30 motion undoubtedly recognized, it was highly unlikely that the failure to file the notice was the product of counsel’s neglect, and infinitely more likely that it was the result of a conscious decision not to pursue an appeal, in light of the highly favorable plea bargain defendant received and defendant’s waiver of his right to 28 appeal. For this reason too, the Appellate Division’s order granting coram nobis relief should be reversed. As an initial matter, the coram nobis court erred in granting relief on the basis of a claim that had previously been rejected by a panel of the same court. This7 Court has long held that judges of co-ordinate jurisdiction may not overrule each other in the same litigation, citing the “inefficiency and disorder that would follow” from such a procedure. See People v. Evans, 94 NY2d 499, 504 (2000). “It is fundamental that, in the absence of a statutory exception . . . and in order to prevent vexatious and repeated applications on the same point, a motion once fully heard and decided cannot be revived again or renewed unless . . . made upon presentation of new facts which have occurred since the denial of the previous motion.” Matter of Dondi v. Jones, 40 NY2d 8, 15 (1976). Thus, "a court should not ordinarily reconsider, disturb or overrule an order in the same action of another court of co-ordinate jurisdiction." Id. at 15. The coram nobis court, however, did precisely this. Although presented with the same issue raised before the 460.30 court, the coram nobis court came to the opposite conclusion, effectively overruling the prior court’s determination. None of the justices on the panel denying 460.30 relief were the same justices considering7 the coram nobis motion (A39, A121). 29 Moreover, defendant did not allege in his coram nobis motion any fact that occurred after the determination of that prior motion. Accordingly, the coram nobis court should not have disturbed the determination of the 460.30 court. At the very least, it should not have done so without the most compelling overriding reason. Here, no such reason existed. Indeed, the determination of the 460.30 court was fully justified. This is so for many reasons. First, defendant’s allegations were fatally flawed because he entirely failed to assert that he made his request to file a Notice of Appeal within the 30 days in which the notice could have been properly filed. If the request was made thereafter, counsel would have been unable to comply with the request in a timely manner and counsel’s conduct would not have been professionally unreasonable. Thus, in the absence of such an assertion, defendant’s claim should not have been granted. 8 Second, defendant had only his own bare assertion to support his claim. He did not provide an affidavit of counsel or of any other individual who may have been present suggesting that such a request was actually made within the statutory Defendant suggested for the first time that he had made the request in a timely manner in8 his reply papers to the coram nobis petition. Assuming the truth of the assertion, which for reasons stated below was highly unlikely to be true, defendant could readily have made this assertion at the time of the initial 460.30 motion. It was therefore not a “new fact[] which ha[d] occurred since the denial of the previous motion,” Matter of Dondi v. Jones, 40 NY2d at 15, and, as a result, could not have bees sufficient to change the outcome in the coram nobis petition. 30 time period. Cf. Syville, 15 N.Y.3d at 391 (two defendants provided affidavits of counsel confirming their assertions). Because defendant’s allegations were entirely self-serving and wholly unsupported, the 460.30 court was justified in denying relief. Third, defendant undermined his own contention when he argued that he did not have notice of his right to appeal in the first place. He complained that counsel had not provided written notice, and that this was a sufficient ground to9 allow him to file a late Notice of Appeal. This in turn strongly suggested that he was advancing the contention that he did not know that he had a right to appeal prior to the expiration of the 30 days. But if this latter assertion were true, he could not, of course, have asked counsel to pursue an appeal within that period. Indeed, these contradictory arguments were by themselves ample ground to reject defendant’s motion. Fourth, defendant’s allegation that he requested counsel to file a Notice of Appeal within the statutory period was further undermined by the fact that he received an extremely favorable plea bargain and had no motivation at the time he was sentenced to seek to overturn that agreement on appellate review. Pursuant to Defendant reiterated the contention that he did not receive notice in his motion for9 reconsideration, without even mentioning the assertion that he had requested counsel to file a Notice of Appeal. See Affidavit in Support of Motion for Reconsideration, dated January 22, 2008 at par. 4 (A41). 31 the bargain, defendant’s Queens sentence of a total of two and two-thirds to eight years was imposed on February 6, 2007, to run concurrently with the previously imposed and much longer Nassau County sentence of 15 years. By statute, the shorter sentence was subsumed within the latter. Penal Law § 70.30(1)(a) (maximum term of indeterminate sentences “merge in and [are] satisfied by discharge of the [determinate] term which has the longest unexpired term to run”). Thus, by pleading guilty, defendant in effect escaped any jail time whatsoever for the Queens County crimes. This was a very substantial benefit and made it highly unlikely that, as soon as he was sentenced, he would immediately seek to overturn such a favorable bargain. While these reasons alone provided more than ample ground to deny the motion, there was still more. As the record reflected, defendant waived his right to appeal as part of the bargain. Defendant specifically acknowledged to the plea court that he had signed a document waiving his right to appeal, that his attorney had explained the right to him, and that he understood that right (P3) (A7). It is unlikely, therefore, that he would seek appeal so quickly on the heels of giving up such a right.10 While defendant did file a Notice of Appeal in the Nassau County case, see People v. Patel,10 74 A.D.3d 1098 (2d Dept. 2010), that bargain was far less favorable than the one in Queens. Indeed, defendant was made to plead to the top count of Rape in the First Degree, a B violent felony offense, and received a sentence of 15 years, when, even on the top count, he could have received a determinate sentence of five years, Penal Law § 70.80(4)(a)(i). Moreover, defendant did not waive 32 Thus, the 460.30 court had more than ample reasons to reject defendant’s claim. And because no new facts, occurring after the denial of the 460.30 motion, were contained in the later petition, the coram nobis court had no ground to overturn the prior court’s determination. Moreover, despite the coram nobis court’s citation to Syville, the showing in that case was effectively the polar opposite of defendant’s showing here. Indeed, that case provides a helpful contrast demonstrating the dispositive failings of defendant’s claim. In Syville, this Court considered the appeals of two defendants, directing that the coram nobis applications be granted in both. In both cases, the defendants were convicted after trial, unlike defendant here, who pled guilty and waived his right to appeal. Similarly, in both cases, the defendants provided more than their own bare assertions in support of their claims, filing affidavits of counsel who conceded that timely requests had been made to file a Notice of Appeal and that they had not complied with those requests, citing “law office failure” and a mistaken belief as to the law. As a result, in both cases, the defendants readily made out their claims of his right to appeal in the Nassau County case, suggesting that he waived his right in Queens because in fact he had no intention of appealing. Indeed, it is unlikely that counsel diligently adhered to defendant’s wishes in the Nassau County case but callously disregarded them in the Queens prosecution. 33 ineffective assistance of counsel, and, in both cases, the People conceded as much. Given the stark contrast between Syville and defendant’s claim in this case, not only is Syville inapposite, it, if anything, supports the opposite conclusion of the one for which the coram nobis court cited it. In short, even if defendant’s claim could be reviewed on coram nobis, his petition should have been denied. Defendant presented no cause to overturn the prior court’s determination, which was fully justified. Indeed, defendant’s failure to allege that he made his request in a timely manner, his wholly unsupported, and contradictory, assertions, his highly favorable plea bargain, and his waiver of his right to appeal all lead to the conclusion that the 460.30 court correctly decided his motion. Absent a new, previously unavailable assertion, the coram nobis court erred in disturbing the prior court’s determination. * * * Because coram nobis is invoked only where no other recourse is available, and because defendant here had ample opportunity to raise his claim previously using a statutory procedure and obtained an adjudication of his claim at that time, he was not entitled to a second adjudication of his contention in a coram nobis petition. And even if the coram nobis court had such power, it should not have 34 exercised it here to overturn the prior court’s determination, as the prior court correctly concluded that defendant’s inconsistent and unsupported allegations required no such remedy. Accordingly, the order of the Appellate Division granting coram nobis relief should be reversed. CONCLUSION The order of the Appellate Division granting defendant coram nobis relief should be reversed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: _________________________ John M. Castellano JOHNNETTE G. TRAILL JOHN M. CASTELLANO JOHN F. MCGOLDRICK Assistant District Attorneys of Counsel July 23, 2013 35 36