The People, Appellant,v.Vinod Patel, Respondent.BriefN.Y.April 29, 2014To 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 REPLY 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 NOVEMBER 18, 2013 Queens County Indictment Number 2473/06 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT DEFENDANT FAILS TO PROVIDE ANY LEGAL BASIS FOR CREATING A NEW REMEDY WHERE A STATUTORY PROCEDURE ALREADY EXISTS, WHERE DEFENDANT HAD A FULL OPPORTUNITY TO OBTAIN MERITS REVIEW UNDER THAT PROCEDURE, AND WHERE A NEW REMEDY WOULD CONTRAVENE AN EXPRESS LEGISLATIVE LIMITATION ON RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. This Court’s Caselaw Does Not Allow the Use of Coram Nobis When A Defendant Has Had a Prior Full and Fair Opportunity to Bring a Claim Under a Statutory Provision, Particularly Where the Legislature Has Enacted an Express Restriction on Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. Defendant’s Policy Arguments Do Not Justify Ignoring Section 460.30's Clear Statutory Command .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 C. Contrary to Defendant’s Claim, Enforcement of Section 460.30's Statutory Limitation on Relief Serves Important Purposes Both in General and as Applied Here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 D. Defendant’s Contention That His Plea Was Involuntary Is Unavailing and His Remaining Arguments Are Wholly Without Merit.. . . . . . . . . . . . . . . . . . 34 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 TABLE OF AUTHORITIES Page No. Cases Bennett v. Artuz, 531 U.S. 4 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Boykin v. Alabama, 395 U.S. 238 (1969). . . . . . . . . . . . . . . . . . . . . . . . 35n.4 Brown v. Allen, 344 U.S. 443 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Engle v. Isaac, 456 U.S. 107 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Flores v. Roe, 228 Fed. Appx. 690 (9 Cir. 2007). . . . . . . . . . . . . . . . . . . . 20th Johnson v. Hobbs, 678 F.3d 607 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Mackey v. United States, 401 U.S. 667 (1970) . . . . . . . . . . . . . . . . . . . . . . 27 Martinez v. Ryan, __U.S.__, 132 S.Ct. 1309 (2012). . . . . . . . . . . . . . . . . . 20 Matter of Walton v. DOCS, 13 N.Y.3d 475 (2009) . . . . . . . . . . . . . . . . . . . 18 McCleskey v. Zant, 499 U.S. 467 (1991). . . . . . . . . . . . . . . . . . . . . . . . 26, 27 McQuiggin v. Perkins, __U.S.__, 133 S.Ct. 1924 (2013) . . . . . . . . . . . . . . 21 Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Adams, 12 N.Y.2d 417 (1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Bachert, 69 N.Y.2d 593 (1987) . . . . . . . . . . . . . . . . . . . . . . passim People v. Corso, 40 N.Y.2d 578 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10 People v. Curry, 42 A.D.2d 514 (1 Dept. 1973). . . . . . . . . . . . . . . . . . . . . 10st People v. D’Allesandro, 13 N.Y.3d 216 (2009. . . . . . . . . . . . . . . . . . . . 23, 32 People v. Evans, 94 N.Y.2d 499 (2000) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Finnegan, 85 NY2d 53 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ii People v. Francis, 38 NY2d 150 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Friedgood, 58 N.Y.2d 467 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Guin, 243 A.D.2d 649 (2d Dept. 1997) . . . . . . . . . . . . . . . . . . . . 33 People v. Harris, 61 N.Y.2d 9 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36 People v. Kordish, __ N.Y.3d __ 2013 NY Slip Op 6734, 2013 N.Y. LEXIS 2859 (Oct. 17, 2013). . . . . . . . . . . . . . . . . . . . 19n.3 People v. Lampkins, 21 N.Y.2d 138 (1967). . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Lasalle, 20 N.Y.3d 1024 (2013). . . . . . . . . . . . . . . . . . . . . . . 23, 32 People v. Leon, 264 A.D.2d 784 (2d Dept. 1999) . . . . . . . . . . . . . . . . . . . . 33 People v. Montgomery, 24 N.Y.2d 130 (1969). . . . . . . . . . . . . . . . . . . . . . . 10 People v. Nieves, 67 N.Y.2d 125 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Rodriguez, 244 A.D.2d 364 (2d Dept. 1997). . . . . . . . . . . . . . . 33 People v. Rosenberg, 45 N.Y.2d 251 (1978). . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Stanley, 12 N.Y.2d 150 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Syville, 15 N.Y.3d 391 (2010).. . . . . . . . . . . . . . . . . . . . . . . passim People v. Thomas, 47 N.Y.2d 37 (1979).. . . . . . . . . . . . . . . . . . . . . . . passim People v. Williams, 19 N.Y.3d 100 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . 17 Rudaj v. Treanor, 552 Fed. Appx. (2d Cir. 2013) . . . . . . . . . . . . . . . . . . . 20 Teague v. Lane, 489 U.S. 288 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Tyminski v. Public Service Commission, 38 N.Y.2d 156 (1975) .. . . . . . . . 18 United States v. Denedo, 556 U.S. 904 (2009) . . . . . . . . . . . . . . . . . . . 11, 28 iii Statutes 1 Statutes, McKinney’s Consolidated Laws of New York, sec. 141, p. 284 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Criminal Procedure Law § 195.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Criminal Procedure Law § 320.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Criminal Procedure Law § 440.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Criminal Procedure Law § 460.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim iv COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x : THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : VINOD PATEL, : Defendant-Respondent. : -------------------------------------------------------------------- x REPLY BRIEF FOR APPELLANT In his brief to this Court, defendant does not dispute that he had two opportunities to argue to the Appellate Division that he should be allowed to file a late notice of appeal – in his initial section 460.30 application and on reconsideration of that motion. Nor does defendant maintain that he was unaware that attorney error would constitute grounds for relief; that he could not, at that time, have made the factual averments that he later presented to the court; or that the Appellate Division failed to assess the merits of his claim. Similarly, defendant does not dispute that section 460.30 of the Criminal Procedure Law strictly limits applications to file a late notice of appeal or that his application could not properly be made under that statute. Nevertheless, relying on People v. Syville, 15 N.Y.3d 391 (2010), and prior cases, defendant urges the Court to ignore section 460.30 and create an additional remedy for him outside the statute. But neither Syville nor the other cases he relies on hold that coram nobis may be invoked where a defendant has already obtained merits review of his claim under section 460.30. To the contrary, time and again, this Court has held that coram nobis may be used only where no other remedy is available to obtain merits review, that section 460.30 supplanted coram nobis relief as a means of obtaining permission to file a late notice of appeal, and that section 460.30 is the proper and only procedure to be used unless the defendant has been deprived of his opportunity under the statute. In short, defendant equates the case where a defendant had no prior opportunity for merits review, and, thus, as in Syville, had no alternative but coram nobis, with a case in which the defendant had an opportunity for, and actually received, merits review but failed to make out a claim. The analogy is a false one and this Court should not adopt it. Because defendant does not provide any ground for creating a new, additional remedy where the Legislature has already provided one and because providing that remedy would in fact contravene the limitations of the statute, the order of the Appellate Division granting coram nobis relief should be reversed. 2 ARGUMENT DEFENDANT FAILS TO PROVIDE ANY LEGAL BASIS FOR CREATING A NEW REMEDY WHERE A STATUTORY PROCEDURE ALREADY EXISTS, WHERE DEFENDANT HAD A FULL OPPORTUNITY TO OBTAIN MERITS REVIEW UNDER THAT PROCEDURE, AND WHERE A NEW REMEDY WOULD CONTRAVENE AN EXPRESS LEGISLATIVE LIMITATION ON RELIEF As explained in the People’s main brief, section 460.30 provides the exclusive legislative means for extending the jurisdictional 30-day time period in which to file a late notice of appeal, but limits such motions to one year from the expiration of the 30-day period. Defendant here had ample opportunity under that statute to raise his claim, and in fact raised and received full merits review of his contention under the statute. Defendant now asks this Court to authorize an additional opportunity for review outside the statutory time period via coram nobis, even though the notice of appeal requirements are jurisdictional in nature and the statutory command is clear. Defendant provides no legal ground justifying the creation of this additional remedy and his policy arguments are insufficient to override the legislative mandate. Accordingly, the Appellate Division erred in granting him coram nobis relief. Defendant makes four arguments urging this Court to create an additional remedy for him outside section 460.30 despite his full and fair prior opportunity under that statute to present the claim earlier, despite full merits review of his contention at that time, and despite the fact that 460.30, otherwise 3 the exclusive means of raising his claim, precludes such relief after one year from the expiration of the 30-day period in which to file a notice of appeal. First, he argues that this Court’s caselaw allows coram nobis review in such situations, pointing to People v. Syville, 15 N.Y.3d 391 (2010), which provides a limited exception to the statute where defendants could not have complied with it because they were unaware of the necessary facts. He also points to other coram nobis cases in which the facts allegedly reveal that the defendant had made prior motions for the same relief that he eventually sought through coram nobis and he argues from this that the court has authorized multiple forms of relief. Second, defendant raises policy grounds for creating the remedy: restricting coram nobis would be unfair to defendant because he made his motion pro se and diligently pursued his rights. Third, defendant argues that there is no countervailing policy rationale that would mandate compliance with the statute. Finally, defendant contends that he should be allowed an additional remedy because he has viable claims to pursue on appeal. Defendant is wrong on all counts. First, as explained in greater detail below, none of the cases cited by defendant provide coram nobis relief where, as here, defendant had an opportunity for, and received, merits review of his contention via a statutory procedure. Indeed, in none of those cases was a statutory remedy available under the CPL, much less a statutory remedy that precludes relief after a specific point in time. Here, in contrast to defendant’s cases, defendant had a 4 full and fair opportunity for relief but failed to make out a claim, and his subsequent repetitive attempt to obtain the same relief was barred by the terms of the statute. Second, defendant’s policy arguments that application of the statute would be harsh are insufficient to overcome the statutory mandate precluding relief. The Legislature, in enacting section 460.30, provided the exclusive remedy for failing to file a late notice of appeal, People v. Corso, 40 N.Y.2d 578 (1976), and this Court has expressly held that its terms, including its one year absolute time limit on this form of relief, must be strictly construed because the statute is an exception to the jurisdictional requirement of a notice of appeal. People v. Thomas, 47 N.Y.2d 37, 43 (1979). If the defendant is thereby deprived of multiple opportunities for merits review, any alleged unfairness must be directed at the Legislature. Nor has defendant shown any constitutional defect in the statute; as demonstrated in the People’s main brief, due process requires only one opportunity for merits review, not multiple ones. In the absence of a constitutional impediment, the statute must be given effect as written, defendant’s policy arguments notwithstanding. Moreover, defendant, although acting pro se, has never alleged that he did not understand that his attorney’s misconduct was a ground for obtaining a new appeal, or that, at the time of his initial motion, he could not have alleged the facts supporting his claim. Cf. People v. Syville, 15 N.Y.3d at 391 (defendant did not know that notice of appeal had not been filed). The 5 fact that the defendant proceeded pro se should not, by itself, relieve him of the responsibility of making what he knew to be relevant factual allegations. If, for example, defendant told his attorney that he wanted to file a notice of appeal – despite acknowledging in open court that his attorney explained to him that he was giving up his right to appeal – defendant was well aware of1 that circumstance at the time of his initial motion and he could easily have conveyed it to the court in his section 460.30 motion. The fact that he did not do so presents no constitutional or other impediment to enforcement of the statutory command. Nor does defendant’s diligence by itself entitle him to relief. This Court has repeatedly insisted on the unavailability of any other remedy as the sina qua non for providing coram nobis as a means of redress. Diligence alone may ultimately be necessary as well, but it is not by itself sufficient, under this Court’s case law, to demand coram nobis relief. Nor does adherence to section 460.30 punish the diligent on the theory, advanced in the respondent’s brief, that a defendant who waits more than a year to inquire about a late notice of appeal will have a remedy that defendant did not. A defendant who waits more than a year to inquire about a notice of appeal will be equally barred from bringing a coram nobis petition unless he or she can show that the failure to inquire was justified under the circumstances. Diligence is required in both situations, and a defendant who deliberately waits to inquire about the filing As noted in the People’s main brief, defendant did not waive his right to appeal in the1 Nassau case. 6 of a notice of appeal in order to obtain coram nobis relief is both foolish and destined to be denied that relief. Third, defendant claims that there is no countervailing policy consideration supporting the preclusion of multiple forums for merits review of the same claim. This is simply untrue. Limitations on multiple instances of merits review reduce needless, often highly repetitive, litigation; bar defendants from bringing new allegations that could previously have been alleged but may be difficult to rebut years after the fact; discourages forum shopping; and promote the finality of convictions. Here, the Legislature recognized that a one-year cut off on attempts to file a late notice of appeal provides ample time for a defendant to raise a claim if he has one and, in the absence of a valid ground for relief, provides an end to the appellate process. Whether or not this Court, writing on a clean slate, would make the same choice as the Legislature in this regard is not the issue; effectuating the Legislature’s intent in this regard most certainly is. Indeed, most of defendant’s arguments suffer from this fatal flaw; he acts as though this Court had no constraint under section 460.30 or no obligation to follow the Legislature’s command. It does, and his complaints about the balance the Legislature struck are, in the absence of a constitutional challenge, not a ground for overturning its rule. Finally, whether the defendant possesses a viable issue to present on an appeal – and defendant did not have any here – is not dispositive of 7 whether he has a right to appeal. The 30-day time for filing the notice, and its extension to one-year upon a proper showing, is jurisdictional, and the viability of the claims does not render the restrictions any less preclusive. Moreover, the record here amply establishes that defendant’s plea was knowing and voluntary. Defendant’s plea was highly advantageous, since he was not required to serve a single day of incarceration over the much longer prison sentence he incurred on the Nassau rape and incest case; defendant repeatedly affirmed on the record that his plea was voluntary and he allocuted to every necessary fact; and defendant has never suggested he had a defense to the charges, which involved his possession of pictures of a child under the age of 12 whom he personally knew performing oral and vaginal sex with an adult. Moreover, contrary to defendant’s contention, this Court has in fact upheld pleas where no specific allocution of his trial rights has been elicited, as long as the record otherwise demonstrates, as here, that the plea is knowing and voluntary. Thus, none of defendant’s arguments warrant, much less compel, the creation of a new, additional opportunity to press a claim where one has already been provided. Similarly, none provide a legitimate ground for reading the statutory limitation out of section 460.30 and ignoring its command. Accordingly, the Appellate Division erred in affording defendant an additional opportunity for review in contravention of the statute, after a full and fair opportunity had already been provided within the statutory framework. 8 A. This Court’s Caselaw Does Not Authorize the Use of Coram Nobis When A Defendant Has Had a Prior Full and Fair Opportunity to Bring a Claim Under a Statutory Provision, Particularly Where the Legislature Has Enacted an Express Restriction on Relief. Defendant argues that this Court’s decision in People v. Syville, 15 N.Y.3d at 391, authorizing coram nobis relief where a defendant cannot use section 460.30 to move to file a late notice of appeal, also authorizes coram nobis review here. He also points to other cases in which coram nobis relief has been authorized even though the defendants had purportedly previously moved for similar relief using other procedures. None of these cases authorize relief here. Syville is expressly limited to situations in which 460.30 was never available because the defendants were unaware within the one-year statutory period that notices of appeal had not been filed in their cases. Indeed, the Court in Syville, recognizing the jurisdictional nature of the statutory limitations, specifically limited its holding to situations in which the failure to file the notice “could not reasonably have been discovered within the one-year period” and relied on its own precedent holding that coram nobis becomes available “when a defendant has no other procedural recourse.” 15 N.Y.3d at 400; see also People v. Bachert, 69 N.Y.2d 593 (1987) (coram nobis available where no statutory remedy existed to address claims of ineffectiveness of appellate counsel). Here, by contrast, defendant both had and used the opportunity under the statute to bring his claim, and obtained review of the 9 merits of his claim under that provision, but merely failed to make out a constitutional wrong. Because defendant both had and used a statutory remedy, and because he obtained merits review of his claim, he was not entitled to coram nobis relief. Defendant nevertheless argues that Syville authorizes relief here. He argues that Syville’s express language limiting its holding to situations in which no other recourse is available is nothing more than an observation by the Court addressing the facts of that particular case, in which no other recourse happened to be available. Defendant’s Brief at 29. This argument is fatally flawed as this portion of the Court’s decision relies on well-established precedent and thus cannot be interpreted as an isolated, off-hand reference to the specific facts of Syville. Indeed, this Court has held time and again that, after the adoption of the Criminal Procedure Law supplanted earlier common law remedies, coram nobis continues to exist only where no statutory remedy is available. Specifically, in People v. Corso, 40 N.Y.2d at 580-81, this Court held that claims to file a late notice of appeal, although previously made through coram nobis under People v. Montgomery, 24 N.Y.2d 130 (1969), would, after the passage of the CPL, have to be made under section 460.30. In so holding, this Court relied heavily, indeed exclusively, on the decision in People v. Curry, 42 A.D.2d 514 (1 Dept. 1973), which held that courts nost longer had jurisdiction to entertain coram nobis petitions on this ground, and that applications for this relief had to be made under section 460.30. In 10 addition, this Court noted that compliance with the restrictions in section 460.30, such as the one year statutory bar, was mandatory unless a specific exception applied. 40 N.Y.2d at 581. Later, the Court reiterated the principle that section 460.30 “defined the means by which such claims could be raised” in People v. Thomas, 47 N.Y.2d at 42. And 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. Again, coram nobis was appropriate only in the absence of other statutory remedies. Accord, United States v. Denedo, 556 U.S. 904, 911 (2009) (coram nobis is an extraordinary remedy that may not issue when alternative remedies are available). Thus, the limiting language of Syville was far from a stray statement pertaining only to the specific facts before the Court in that case; it was, instead, the recitation of a long-standing principle with continuing vitality. Moreover, this Court recognized in Syville itself that it was creating an exception to the general rule that must be strictly construed and applied only when necessary. The Court reiterated that section 460.30's limitations are jurisdictional in nature in that they modify the jurisdictional requirement of a notice of appeal and that, for that reason, its provisions must be strictly followed and deviated from only as necessary. 15 N.Y.3d at 399. 11 And in so doing, this Court again relied on its own well established precedent. The Court cited, for example, People v. Thomas, 47 N.Y.2d at 43, in which this Court had noted, “We remain convinced that strict construction [of section 460.30] is appropriate since the time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them.” Indeed, the Syville Court noted that, because of the jurisdictional restrictions, it had created only one other limited exception to section 460.30's strictures, where the People were estopped from relying on 460.30's limitations because of their own conduct contributing to defendant’s late filing. 15 N.Y.3d at 399. Syville’s provision of relief in one other narrow circumstance was similarly an exception rather than the rule, a fact recognized by the Syville’s Court’s own observation that relief under this exception would be “rare” and that most defendants would proceed under section 460.30. Id. at 400, n. 2. A construction of Syville that provides relief even when defendant has already obtained merits review would read out of the decision the requirement that there be no other recourse available, would judicially modify, if not nullify, the statute, and would broaden Syville’s exception well beyond its current application, rather than restrict it. Neither Syville nor the cases it relies upon permit such a result. Furthermore, while defendant attacks the People’s reliance on this Court’s express limiting language in Syville as illogical, it is defendant’s theory that leads to entirely untenable results. Under defendant’s argument, coram 12 nobis would continue to exist despite the Legislature’s provision of statutory remedies providing the same relief. Thus, despite the Legislature’s provision of a motion to vacate judgment under section 440.10 of the Criminal Procedure Law, a diligent, pro se defendant would be able to file a coram nobis petition raising a claim clearly encompassed by that statute. Indeed, in so doing, he would be able to circumvent the procedural bars in 440.10, just as defendant here alleges that he can circumvent 460.30's bar. This Court has never suggested that a defendant, who could have moved under section 440.10, or one who actually obtained merits review of his claim under that statute, is entitled to an additional round of review under coram nobis, particularly where review would otherwise be barred under section 440.10's provisions. To do so would effectively render 440.10 and its procedural limitations a nullity – something that neither the Legislature nor this Court could ever have intended. Similarly, defendant’s attempt to read the limiting language out of section 460.30, or to circumvent it via coram nobis, cannot prevail. If the Court were to follow defendant’s argument, the statute limiting applications for this form of relief to one year could routinely be circumvented as a subsequent coram nobis petition would lie to give the defendant additional opportunities to raise his claim. But as this Court itself has observed with regard to section 460.30's restrictions, the courts “lack inherent power to modify or extend” the statutory provisions, People v. Thomas, 47 N.Y.2d 43, and neither the 13 defendant nor the courts can achieve the same result by simply adopting coram nobis as a means of relief and thereby circumventing the statute. Still further, just as the statutory limitation cannot be so easily eradicated, Syville’s limiting words that coram nobis can be used only when no other recourse is available cannot be ignored. Significantly, defendant offers no alternative interpretation that would give Syville’s language a logical meaning. If anything, defendant seems to suggest that the limiting language of Syville that the defendant have no other available recourse requires only that the defendant have previously been unsuccessful in getting relief, not that there be no other forum in which he could have properly gotten review of his claim. But the mere fact that defendant has previously been unsuccessful does not by itself compel extraordinary relief in contravention of a statute, as defendant’s inability to prevail may represent nothing more than the failure to make out a claim when given an opportunity to do so. Indeed, that is precisely what occurred here. Under defendant’s view of Syville’s language, any unsuccessful defendant would have “no other recourse” and could bring a coram nobis petition, regardless of any limitation in the statute. Here again, neither the Legislature nor this Court in Syville could have intended such a result. Defendant’s citation to other cases provides no more support for his contention. Defendant’s reliance on People v. Lampkins, 21 N.Y.2d 138 (1967), People v. Adams, 12 N.Y.2d 417 (1963), and People v. Stanley, 12 N.Y.2d 150 (1963), for example, is misplaced for three separate reasons. First, 14 all of those cases were decided before the passage of the CPL and, therefore, did not address whether the existence of a statutory remedy providing the same relief as coram nobis precludes the use of coram nobis except in extraordinary circumstances. Second, all of those cases dealt with attorney error in allowing appeals to be dismissed, and thus none of those cases implicated the jurisdictional limitations contained in section 460.30. As this Court made clear in Thomas, the jurisdictional nature of section 460.30's provisions require a strict construction of any exception to the statute. 47 N.Y.2d at 43. Third, none of defendant’s cases dealt with an express statutory limitation on the type of relief sought. Here, section 460.30 precludes applications to file a late notice of appeal after one year from the expiration of the period in which to file a notice of appeal. No such statutory bar existed in Lampkins, Adams, or Stanley. 2 Defendant’s analysis of People v. Bachert, 69 N.Y.2d at 593, is similarly flawed. In Bachert, the court adopted the remedy of coram nobis expressly because no statutory remedy was available to address the issue presented there. Indeed, the Court described the requirements of the modern writ of coram nobis to include the requirement that the defendant show that the “current proceeding is not a substitute for a new trial, appeal or other statutory Nor does defendant gain any support for his contention from the observation in Lampkins2 that making coram nobis relief available in that case allowed review in the Court of Appeals while other conceivable remedies did not (Defendant’s Brief at 32). Here, the statutory remedy available to defendant, Section 460.30, was reviewable in this Court, see C.P.L. § 460.30(6), although defendant never actually sought review of the Appellate Division’s determination. 15 remedy.” People v. Bachert, 69 N.Y.2d at 598 (emphasis added). Moreover, the Court specifically analyzed section 440.10's viability as a remedy and held that to bring claims of ineffective appellate counsel under that statute “would constitute legislation by judicial fiat.” Id. at 597. There can be no doubt, then, that had a statutory remedy been available to provide the relief sought, this Court would have adopted that statutory remedy and would not have invoked coram nobis. It is all the more certain that coram nobis would not have been necessary if the defendant had previously obtained full merits review of a his claim under an appropriate statute. In short, defendant’s interpretation of this Court’s precedent that would allow defendant, who has already received full merits review of his claim, to get a second opportunity for review outside the statutory limitations cannot be correct. Not only is it unsupported by any caselaw, it stands in derogation of the statute’s jurisdictional limitations, which expressly restrict this form of relief, and of this Court’s language in Syville, which limits coram nobis in this context to situations in which the defendant had no prior opportunity for review. Moreover, defendant’s rule would logically compel consideration of endless petitions circumventing the statute, although no constitutional or other impediment exists to implementation of the statutory bar. For all these reasons, this Court should not adopt defendant’s unsupported and illogical interpretation of this Court’s decisions. 16 B. Defendant’s Policy Arguments Do Not Justify Ignoring Section 460.30's Clear Statutory Commands. In order to strengthen his plea for multiple opportunities for merits review of his claim, defendant argues that pro se defendants, like him, are unschooled in the law and need more than one opportunity to make the necessary allegations to get relief. He similarly argues that his diligence prior to his coram nobis petition warrants relief even after the jurisdictional statutory limitations period of section 460.30 expired. Both of these arguments, however, are squarely in the nature of policy arguments and do not by themselves authorize departing from the clear statutory command of section 460.30. This Court has long held that “when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used.” People v. Williams, 19 N.Y.3d 100, 103 (2012), quoting People v Finnegan, 85 NY2d 53, 58 (1995)(internal quotation marks and brackets omitted); see also Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 (1976). Arguments that a statute will have adverse effects on the litigants or raises policy concerns may at some point inform the construction of obviously ambiguous language, but it does not otherwise provide cause for the courts to ignore a clear statutory command. 1 Statutes, McKinney’s Consolidated Laws of New York, sec. 141, p. 284 (1971). Unless the statute offends some constitutional provision, the statutory directive must be enforced by the courts and countervailing policy concerns 17 present issues that must be addressed by the Legislature. Matter of Walton v. DOCS, 13 N.Y.3d 475, 484 (2009) (absent a constitutional violation, defendants “substantial” public policy arguments had to be addressed to the other branches of government); Tyminski v. Public Service Commission, 38 N.Y.2d 156 (1975) (fact that an alternative rule might advance public policy did not warrant ignoring statutory language; public policy argument should be addressed to the Legislature). As the Supreme Court has held, “Whatever merits these and other policy arguments may have, it is not the province of this Court to rewrite the statute to accommodate them.” Bennett v. Artuz, 531 U.S. 4, 10 (2000). Or, as this Court has put it, ignoring a statute in favor of a policy argument would be “legislation by judicial fiat.” Bachert, 69 N.Y.2d at 597. Here, the one-year limitation period applied to motions for permission to file a late notice of appeal in section 460.30 is clear and unambiguous, and thus the statutory language must be given effect. Indeed, defendant has not even attempted to identify an ambiguity in the statutory text. Nor has defendant argued that the statute is unconstitutional, either in general or as applied, and indeed he could not, as Due Process requires only one opportunity for merits review, not multiple ones. See Appellant’s Brief at 23. Accordingly, defendant’s arguments that the statute would adversely effect him and other pro se litigants or might adversely affect diligent defendants, even if forcefully argued, do not authorize a court to ignore or circumvent 460.30's clear statutory language. 18 Defendant’s arguments, moreover, carry little weight on their own. No doubt pro se litigants may be unschooled in the law and may be entitled to a broad construction of their pleadings. But here, defendant was well aware of the applicable law and the facts that pertained to it. Indeed, defendant recited the relevant statute himself, signaling his knowledge that “improper conduct of an attorney” was grounds for filing a late notice of appeal (A23). Moreover, defendant was in possession of all of the purported facts that formed the basis of his claim. He was well aware that he had, according to him, asked his attorney to file a notice of appeal and that the attorney had failed to do so. Yet defendant failed to even allege those simple facts, much less substantiate them. Moreover, shortly after that application, defendant had another opportunity to allege these facts in support of his claim when he moved for reconsideration. Again, defendant failed to do so. The fact that the Legislature’s remedy under 460.30 would preclude yet another attempt, years later, to allege the facts in support of his claim in no way placed an unreasonable demand upon defendant, much less one that would violate due process. 3 Defendant does not argue in this Court that the Appellate Division erred in declining to3 appoint him counsel. Moreover, the court acted reasonably in that regard because defendant had retained counsel below and he had failed to enumerate or provide proof of his finances at the time of his application for poor person relief and the appointment of counsel. For this reason, and because defendant has never contended that he had a constitutional right to counsel when he made his motion, this Court’s decision in People v. Kordish, __ N.Y.3d __ 2013 NY Slip Op 6734, 2013 N.Y. LEXIS 2859 (Oct. 17, 2013), providing an indigent defendant the right to an attorney before dismissal of an appeal, is inapposite. 19 Defendant’s reliance on Martinez v. Ryan, __U.S.__, 132 S.Ct. 1309 (2012), in this regard is wholly misplaced. In Martinez, the Supreme Court modified its own judicially-created doctrine of procedural default applicable on federal habeas review by holding that ineffective counsel at an initial post-conviction proceeding would provide “cause” for overlooking a procedural bar. The decision did not address any statutory provision or bar to relief, and, thus, the Court had a free hand in modifying its own doctrine. Moreover, as the Court was quick to point out, the decision did not create any constitutional rule that would be binding on the states. Id. at 1316. Here, unlike in Martinez, the Legislature has provided a clear statutory command with regard to the parameters of bringing this form of motion, and this Court does not write on clean slate. In the absence of a constitutional defect, the statute must be enforced as written. No such statutory provision was in issue in the Martinez case. Moreover, if this Court were to look to federal habeas law for guidance, there is a far more apt analogy. Under federal law, habeas corpus petitioners are limited to one petition, under a tight one-year statute of limitations, with few exceptions, and the federal courts have routinely applied these limitations against pro se petitioners in the same manner as they are applied against defendants who have attorneys. See, e.g., Rudaj v. Treanor, 552 Fed. Appx. (2d Cir. 2013) (collecting cases); Johnson v. Hobbs, 678 F.3d 607, 611 (2012); Flores v. Roe, 228 Fed. Appx. 690, 691 (9 Cir. 2007). th 20 Neither a petitioner’s pro se status nor the often-cited complexity of federal habeas law compels a different result. Here, the legal premise of defendant’s claim was exceedingly simple, being based on “improper conduct of an attorney,” and was far more accessible to the lay person than the superstructure of federal habeas procedure, which has even been labeled “byzantine.” McQuiggin v. Perkins, __U.S.__, 133 S.Ct. 1924, 1943 (2013) (Scalia, J., dissenting). Defendant was aware of the legal ground of the motion he was making, having recited it in the motion itself, and possessed ample facts to make whatever allegations he wished to make in this regard. The burden under 460.30, then, was far less than the one routinely imposed under federal habeas law, from which the defendant purports to draw support for his claim. Nor does the complaint that defendant had been diligent and that the statute would cut off an opportunity for a second attempt at merits review for him and other diligent defendants suffice to establish an entitlement to that second round of review. Diligence alone is not enough to entitle a defendant to review, much less multiple rounds of review, particularly where, as here, later rounds are precluded by statute. While diligence has often been cited as a necessary prerequisite to the provision of coram nobis relief, this Court has never held it sufficient in itself to warrant that relief. Indeed, this Court has expressly held that the requirements for coram nobis relief include not only a showing that there was 21 “no negligence which could be attributed to the defendant for failure to have brought the alleged error to the attention of the court” earlier, but, “further, that the current proceeding is not a substitute for a new trial, appeal or other statutory remedy.” People v. Bachert, 69 N.Y.2d at 598. Similarly, in Syville, the Court’s decision was based on the unavailability of the statutory remedy, and the Court declined to even address whether the defendants had been diligent because that issue had not been raised below. And in People v. Thomas, 47 N.Y.2d at 43, while the Court noted the defendant’s diligence in pressing his claim, it relied on an estoppel theory based on the District Attorney’s conduct as the basis for declining to enforce the statute and providing defendant relief. In none of these cases, then, was diligence a sufficient basis for granting relief. Here too, diligence is not, by itself, sufficient to provide a remedy. Also unavailing is defendant’s argument that denying coram nobis relief to him would create an inequity because it would limit diligent defendants who discover within one year that no notice of appeal was filed to one application under 460.30 while those who take more than a year to learn that no notice was filed could make multiple applications for coram nobis relief. First, the premise of the claim – that defendant was diligent while the applicants for relief under Syville are not – is false. Defendants taking advantage of the relief in Syville must also be diligent, and if they could have discovered that no notice of appeal was filed within a year, they would, 22 presumably, get no relief at all, much less multiple opportunities to apply for relief. Thus, defendants who deliberately or even negligently wait more than a year to discover that no notice was filed are not in a better position than defendant; they are indeed in a worse position. Moreover, it is not at all clear that a defendant who legitimately waited more than a year to inquire about a notice of appeal would get more than one opportunity to present his claim in multiple coram nobis petitions. Defendant cites People v. D’Allesandro, 13 N.Y.3d 216 (2009), and People v. Lasalle, 20 N.Y.3d 1024 (2013), for this proposition, but neither case dealt with 460.30 and thus neither dealt with that section’s jurisdictional limitations. Whether those jurisdictional limitations, which must be strictly construed, would permit multiple out-of-time petitions is highly doubtful, as such a ruling would contravene both the statute and this Court’s language in Syville. Still further, defendant has failed to establish that he is nearly as diligent as he suggests. Defendant knew full well that the basis for his claim was that his attorney had ignored his directive to file a notice of appeal, and knew that attorney misconduct was a valid ground to file a late notice of appeal. Yet, defendant never made that allegation – that he had directed his attorney to file a notice of appeal – either in his initial section 460.30 motion or in his motion for reconsideration. Similarly, defendant neither obtained nor presented to the court any affidavit, correspondence with his attorney, or other evidence that would have corroborated this claim at the time of his motion, 23 although he made such efforts more than a year after the one-year limitation period had expired. Indeed, defendant did not even allege in any forum that he had instructed his attorney to file a notice of appeal in the Queens case until April of 2009, more than two years after the 30-day period expired. And he did not present that claim, or his belated alleged support for it through the vehicle he now asks this Court to adopt, coram nobis, until three and one-half years after his motion for reconsideration was denied (A89). Cf. People v. Friedgood, 58 N.Y.2d 467, 470-71 (1983) (three-year delay failed to establish sufficient diligence under section 440.10 to permit relief). Even then, his correspondence with his attorney, offered in support of his allegation, failed to contain a single assertion by him that he had directed his attorney to file a notice of appeal, much less that he had done so within the 30-day time period for filing such a notice. While he faults his attorney in the letters for failing to file the “required” notice of appeal (A76), nowhere in any of the letters does he say that he had instructed counsel to do so. Thus, the key factual allegation supporting defendant’s claim – that he had specifically directed his attorney to file a late notice of appeal – surfaced for the first time more than two years after the expiration of the 30- day period, and was not raised in the current forum until three and one-half years after his initial motion. Defendant’s diligence in presenting this claim, then, can seriously be doubted. 24 In short, defendant’s policy arguments cannot prevail against the clear command of the statute. The existence of possible adverse effects or policy considerations defendant deems significant does not warrant ignoring the statutory mandate. Moreover, the statute places no undue burden on defendant, who knew the legal and factual basis of his claim at the time he made his initial motion. Thus, defendant’s belated attempt to raise his current allegation, after a prior full opportunity to raise his claim and prior review of the claim as then alleged, should be rejected. C. Contrary to Defendant’s Claim, Enforcement of Section 460.30's Statutory Command Serves Important Purposes Both in General and as Applied Here. In his brief, defendant contends that, in contrast to the policy arguments supporting the relief he seeks, no rationale supports application of section 460.30's time limit once a defendant has made a timely motion under the statute. Contrary to this contention, application of the statutory bar to preclude multiple rounds of review prevents unnecessary and vexatious litigation, advances the critical purpose of achieving finality in the post- conviction context, prevents defendants from belatedly raising new allegations for his contentions beyond the time set by the statute, and precludes forum shopping. These are more than enough reasons to enforce the statutory time bar enacted by the Legislature after a defendant has made an initial application under the statute. 25 First, like any bar to multiple opportunities for the same relief, a statutory bar precluding litigation after a particular point in time serves to prevent repetitious and often vexatious litigation, sometimes long after the matter would otherwise be settled. Pro se defendants in particular are prone to making multiple applications for the same relief, often filing motion after motion in every conceivable forum. Furthermore, this persistent litigation syphons the resources of the courts and draws attention away from worthy applications, which may be overlooked in the sea of unworthy ones. As the Supreme Court once observed, “The phenomenon calls to mind Justice Jackson's admonition that ‘it must prejudice the occasional meritorious application to be buried in a flood of worthless ones.’” McCleskey v. Zant, 499 U.S. 467, 492 (1991), quoting Brown v. Allen, 344 U.S. 443, 537 (1953) (Jackson, J., concurring in result). Application of the procedural bar in section 460.30 advances this legitimate objective of limiting repetitive litigation and avoiding the depletion of resources even when, or perhaps especially when, a defendant has already made an initial motion under section 460.30. Second, by limiting the time in which an appeal may be prosecuted, section 460.30's limitation on motions to file a late notice of appeal seeks to fix an end-point to post-conviction litigation and thereby advance “one of the law’s very objects . . . the finality of its judgments.” McCleskey v. Zant, 499 U.S. at 491. Finality provides “a visible end to the litigable aspect of the criminal process,” important to all participants in the criminal justice system. 26 Mackey v. United States, 401 U.S. 667, 690 (1970) (Harlan, J., concurring). Victims need finality to obtain some modicum of closure so that they may rest assured that they will not perpetually be called upon to give evidence and to relive both their victimization and the ordeal of trial. But finality is also critical to the public’s perception, and the effectiveness, of the criminal justice system itself. "Without finality, the criminal law is deprived of much of its deterrent effect." McCleskey, 499 U.S. at 491, quoting Teague v. Lane, 489 U.S. 288, 309 (1989). Deterrence, after all, “depends upon the expectation that one violating the law will swiftly and certainly become subject to punishment, just punishment." Engle v. Isaac, 456 U.S. 107, 127, n. 32 (1982) (internal quotation marks and citations omitted). Belated challenges to criminal convictions also undermine reliable adjudications of guilt due to the “[p]assage of time, erosion of memory, and dispersion of witnesses.” Id. at 127-28. And defendants too need finality, for the process of rehabilitation cannot commence until the punishment is accepted. Engle, 456 U.S. at 127, n. 32 (“Rehabilitation demands that the convicted defendant realize that ‘he is justly subject to sanction, that he stands in need of rehabilitation’”). Indeed, as the Supreme Court has observed, "[both] the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether 27 the prisoner can be restored to a useful place in the community." Id. at 127 (internal quotation marks omitted). As the Supreme Court has also observed, the provision of coram nobis relief presents a serious threat to finality. Indeed, the Supreme Court, specifically addressing the availability of coram nobis as a form of relief, has strained to ensure “that finality is not at risk in a great number of cases.” Denedo, 556 U.S. at 911. For this reason, it has limited coram nobis review to “extraordinary cases” and has insisted that it be applied only when other remedies are not available. Id. For similar reasons, this Court too has held that coram nobis should apply in “rare case[s]” and only when other remedies are not available. Syville, 15 N.Y.3d at 400, n. 2. Section 460.30 also serves to promote finality. By limiting extensions of the time in which to file a notice of appeal to one year from the expiration of the initial 30-day period, it sets an outside mark after which the appellate process must be considered ended. It is at that point that victims, the defendant, and the criminal justice system as a whole can regard the conviction and attendant punishment as final. Moreover, the role of section 460.30 in achieving this goal is equally critical when a defendant ignores the statutory time limitation entirely as when he or she makes a motion under the statute that fails to make out a valid claim for relief and then seeks a second opportunity to present that claim outside the statutory time period. In either case, there must be an end to the 28 process, for the sake of all the participants in the criminal justice system, and the legislature has set that end at a specific date. Providing coram nobis relief outside that one-year period thwarts that goal and contravenes the legislative imperative. Thus, this Court should give effect to the statutory goal and, as in Denedo, refrain from putting finality at risk by granting coram nobis relief where other avenues of relief are available. Here, defendant had another ample opportunity for relief and in fact was able to obtain full merits review of his claim via that procedure. The fact that he was unsuccessful does not warrant ignoring the statutory mandate and the objective it seeks to achieve. Third, section 460.30's time limitation advances another important interest: protecting against new allegations that could have been made previously and that may be difficult to rebut years after the initial proceedings in the case. By precluding applications after one year, the statute ensures that memories are sufficiently fresh to address the allegations supporting the motion and, in this way, guards against “stale” claims. See Thomas, 47 N.Y.2d at 43. This same interest is implicated whether a defendant has made an initial motion within the time period or has made no motion at all. A defendant who has made a motion under section 460.30 within the time period will often seek to present new or different allegations in a later motion outside the one-year limit. These new allegations, sometimes made years later, present similar issues regarding the ability of the participants to remember or reconstruct precisely what occurred and why. In this way, even when a defendant has 29 moved once within the statute, section 460.30 seeks to limit new claims and guard against stale allegations. Indeed, under the defendant’s view, a defendant could make one allegation in a timely 460.30 motion and make an entirely different, and even inconsistent, allegation in a subsequent coram nobis petition. A defendant could, for example, allege in a 460.30 motion that prison authorities prevented him from filing a notice of appeal by confiscating his legal mail, and then, many years after the expiration of the one-year period, file a coram nobis petition alleging that his attorney had ignored his timely demand to file a notice of appeal. Similarly, a defendant could allege in an initial 460.30 motion that he was never informed of, and was entirely unaware of, his right to appeal, and then claim years later in a coram nobis petition that he was fully aware of his rights, that he demanded that counsel file a notice of appeal, and that counsel failed to do so. In both situations, counsel may be wholly unprepared to address the later allegations, due to a failure of memory, a loss of records, or for other reasons. Section 460.30's time bar guards against these situations. Nevertheless, defendant would find no point in either example to enforcing the bar of section 460.30. Contrary to defendant’s contention, the goal of guarding against stale claims is equally as important in these scenarios as it is if no 460.30 motion had originally been made. This goal of guarding against stale allegations is implicated here, although adherence to the legislative command does not require that every 30 underlying rationale of the statute be implicated in every case that the provision might affect. Here, defendant failed to raise his critical factual allegation within the one-year time period – that he had requested that counsel file a notice of appeal within the 30-day period in which to do so. Indeed, it was not until three and one-half years after his 460.30 motion was decided that the issue was raised in his coram nobis petition. By that time, this allegation was stale, under the statutory scheme, and the ability of counsel to remember and effectively rebut the allegation was in issue. Section 460.30, then, should operate to prevent that new allegation, just as it should serve to prevent any new claim that a defendant might devise and present after the statutory period had expired. Enforcement of the statute also advances one other salutary purpose. By limiting defendant to timely applications under 460.30, the statute prevents forum shopping by defendants who have been denied relief under that section and who would then bring coram nobis petitions months or years later in the hope of obtaining a panel of judges who might be more favorably disposed to their complaints. Under defendant’s view, this would be perfectly permissible, and defendants could routinely bring new petitions without impediment constantly seeking favorable review from a different panel. In his brief to this Court, defendant disparages the avoidance of forum shopping by setting up a “straw man,” characterizing the People’s argument in this regard as a “law of the case” argument, which, he claims, 31 could not apply here (Defendant’s Brief at 35-36). This is in error for several reasons. First, the People never invoked the law-of-the-case doctrine in their main brief, but simply pointed out that this and other courts in this state have eschewed forum shopping in various contexts. Indeed, as the People pointed out, avoiding forum shopping is a laudable goal when determining what remedies are and are not available. See People v. Rosenberg, 45 N.Y.2d 251, 260-61 (1978). But the People never sought to enforce the Appellate Division’s determination as law of the case, and whether that doctrine applies is beside the point. Regardless of whether that judicial doctrine would preclude relief here, the Legislature has every right to legitimately advance the goal of preventing forum shopping by enacting a bar like the one in 460.30. Thus, regardless of whether the courts of this state, writing on a clean slate, would adopt the prevention of forum shopping as a consideration in this context or apply the law-of-the-case doctrine to avoid forum shopping, they are bound to accept the Legislature’s directive that advances that goal. It is for this reason also that cases cited by the defendant like People v. D’Allessandro, 13 N.Y.3d at 216, and People v. Lasalle, 20 N.Y.3d at 1024, are inapposite. In those case, allowing multiple coram nobis motions, the Court was, indeed, writing on a clean slate. Neither of those cases dealt with any statutory bar or impediment, much less the specific statutory command of section 460.30 precluding applications after one year. The fact that the judiciary in those cases did not view forum shopping as a paramount 32 goal in no way allows the courts to overlook the legislative assessment to the contrary in section 460.30. Moreover, defendant’s analysis of the law-of-the-case doctrine is also flawed. According to defendant, different judges of the same court constitute a single court and a court is always allowed to correct its own mistakes (Defendant’s Brief at 36). Indeed, defendant derides the People for omitting mention of this latter principle (id.) But under defendant’s rationale, two judges of the same court, such as two judges of the Supreme Court in the same county, would be allowed to “correct” each other at will. This is precisely what law of the case prevents. Thus, for example, as this Court observed in People v. Nieves, 67 N.Y.2d 125, 137 n. 5 (1986), a judicial determination on a suppression motion may not be overturned by a judge of co- ordinate jurisdiction conducting a retrial, even though they are technically members of the same “court.” See also People v. Evans, 94 N.Y.2d 499, 504- 05 (2000) (suppression ruling binding on subsequent judges of the same court to consider the case); People v Leon, 264 A.D.2d 784 (2d Dept. 1999) (barring reconsideration of a request for a Mapp hearing by a different judge under the law-of-the-case doctrine; cited with approval in Evans); People v Rodriguez, 244 A.D.2d 364 (2d Dept. 1997) (barring reconsideration of motion to dismiss indictment under the law-of-the-case doctrine; cited with approval in Evans); People v Guin, 243 A.D.2d 649 (2d Dept. 1997) (barring reinspection of Grand Jury minutes under the law-of-the-case doctrine; cited with approval in Evans). 33 So too, one panel of the Appellate Division should not ordinarily overturn the conclusion of another on an issue of law in the same case. Any other ruling encourages forum shopping. Because section 460.30 would give effect to this underlying principle, enforcement of the mandatory limitation in section 460.30 would, contrary to defendant’s argument, serve a valid and important public purpose in this context. In the end, application of the statute to defendants who have invoked section 460.30 and obtained merits review has not only one important purpose, but four. It not only limits repetitive and vexatious litigation, it advances the critical goal of finality of judgments of conviction, it prevents stale allegations and claims from being raised long after the statutory period expires, and it precludes forum shopping. Applying the statute as written is critical to all of these goals. For these and other reasons, application of the statutory time limitation is essential. Indeed, because the Legislature has rationally chosen to further these goals, and because the statutory limitations are both unambiguous and jurisdictional, “courts lack inherent power to modify or extend them.” Thomas, 47 N.Y.2d at 43. The Appellate Division thus erred in granting coram nobis relief. D. Defendant’s Contention That His Plea Was Involuntary Is Unavailing Here and His Remaining Arguments Are Wholly Without Merit. In an effort to convince this Court to ignore the dictates of section 460.30 and the language of Syville, defendant argues that he has compelling 34 issues to present on appeal that will likely result in a reversal. Even assuming, as the People do not, that a strong claim on appeal would be sufficient reason to circumvent the jurisdictional limitations of section 460.30, defendant’s argument seriously overstates his appellate claims and thus his contentions in this regard cannot go unanswered. While acknowledging the trial court informed defendant that he would, by his plea, be giving up his right to a trial and to all of the rights that he would have at a trial, defendant argues that his plea was defective because he was not specifically informed of his “Boykin rights”: the right to a jury trial,4 his right to confrontation, and his right against self-incrimination (Defendant’s Brief at 41). Defendant’s contention is fatally flawed. As an initial matter, there is no mandatory catechism that a court accepting a plea must recite at the time the plea is taken. This Court has specifically held that a plea is not “invalid solely because the Trial Judge failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea.” People v. Harris, 61 N.Y.2d 9 (1983). As this Court has further explained, “there is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel may nevertheless not know what he is doing.” Id. at 16- 17, quoting People v. Francis, 38 NY2d 150, 154 (1975). Boykin v. Alabama, 395 U.S. 238 (1969).4 35 More specifically, however, this Court in People v. Harris, 61 N.Y.2d at 9, dealt directly with the contention defendant raises here. In Harris, the defendants argued that their pleas were invalid because the courts that took their pleas had failed to inform them of their “Boykin” rights, the same three rights the defendant enumerates here. This Court noted that Boykin in no way demanded a specific enumeration of those rights or that a defendant expressly waive any of those rights. This Court also noted that in one portion of the Boykin decision, the Supreme Court cited with approval a colloquy procedure “which does not include a specific enumeration of each of the rights being waived.” Id. at 18. Applying these principles, this Court upheld a colloquy in one of the cases then before it in which none of the rights were enumerated.5 Thus, this Court in Harris put to rest defendant’s current argument– that his plea could not be valid without an enumeration, in whole or in part, of his “Boykin” rights. Moreover, the test articulated by this Court in Harris – that “the plea represent[] a voluntary and intelligent choice among the alternative courses of action open to the defendant,” 61 N.Y.2d at 19 – was amply established by the record here. On this issue, this Court instructed in Harris that “[t]he seriousness of the crime, the competency, experience and actual The colloquy instead "disclose[d] that defendant was represented by counsel, that he had5 discussed his plea with the Trial Judge, that he stated that he understood the consequences of his guilty plea and was entering his plea voluntarily, that he acknowledged the facts underlying his offenses and that he rejected the trial court's offer permitting him to withdraw his plea and proceed to trial." 61 N.Y.2d at 21. 36 participation by counsel, the rationality of the ‘plea bargain,’ and the pace of the proceedings in the particular criminal court are among the many factors which the Trial Judge must consider in exercising discretion.” Id. at 16. Here, the bargain was highly favorable to defendant. Defendant was represented by counsel at the plea proceedings, he specifically acknowledged talking to counsel about his plea, he affirmed that he was pleading guilty knowingly and voluntarily, and he acknowledged the details of his offenses – that he knowingly possessed images on his computer of children below the age of 15 engaging in vaginal and oral sex with adults (A6-A11). Moreover, defendant’s plea bargain was highly advantageous. As a result of his plea, he received a prison term that was concurrent to, and wholly subsumed within, the much longer sentence defendant had negotiated on his Nassau county conviction for rape and incest. Thus, defendant did not, as a result of his plea in this case, serve so much as an extra day in jail despite the exceedingly serious crimes with which he was charged. Furthermore, defendant had no realistic option of proceeding to trial. Defendant had been caught with numerous images of child pornography on his computer at work and neither the circumstances nor defendant himself ever suggested any innocent explanation of how that occurred. In addition, the possible defense of saying that someone else had placed those images on his computer was not available to defendant. As the record reveals, defendant personally knew one of the child victims who was, in the image on his 37 computer, engaging in sex with an adult; in the same computer file as that image was another image of the defendant and the child victim together (A2- 3). And as an affirmation subsequently filed by the prosecutor, without objection, revealed, that relationship was undeniably close and the child was in fact less than 12 years old. It was virtually impossible, then, that defendant6 would escape conviction by a jury, and, had he been convicted, he could easily have been given a period of incarceration that would run consecutively to the time he was serving in Nassau. Because defendant fully acknowledged that he was pleading guilty voluntarily and freely admitted his criminal acts, because he affirmed to the court that he had discussed the plea with his attorney standing beside him, because defendant had no viable alternative of going to trial, and because he received a highly favorable plea bargain, it would be highly unlikely that defendnat could make out a claim on appeal that his plea was involuntary. Defendant’s exaggerated and belabored complaints in this regard should thus be rejected. Similarly unlikely to succeed is defendant’s contention that he did not voluntarily waive his right to prosecution by indictment. The state constitution and section 195.20 of the Criminal Procedure Law fully set out the procedure for waiving this right. Article I, section 2 of the New York State The affirmation was filed at the time of sentence and sealed. The People obtained an6 unsealing order in order to present that affirmation to this Court for the purposes of this appeal. The affirmation will be provided under separate cover. 38 Constitution provides that prosecution by indictment may be waived “by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense.” Pursuant to the authority granted to it in that same section, the Legislature enacted section 320.10 of the Criminal Procedure Law, which provides that a “waiver of indictment must be evidenced by a written instrument” and that the instrument must contain warnings that the defendant has a right to be prosecuted by indictment, that he waives such right, that a superior court information will be filed with enumerated charges, and that the superior court information will have the same force and effect as an indictment. The statute also provides that the “waiver shall be signed by the defendant in open court in the presence of his attorney. All of these requirements were met in this case. Here, the record reflects that defendant was presented with the required written waiver of the right to prosecution by indictment and that the defendant signed that waiver in open court in the presence of his attorney (A6- 7). In addition, the defendant specifically acknowledged that he had discussed the contents of that document with his attorney and understood them (A6-7). In as much as the Legislature prescribed the means of informing the defendant of his right to be prosecuted by indictment, and because the court not only fully complied with that requirement but also complied with all of the other statutory and constitutional requirements and even obtained an express acknowledgment 39 from defendant that the document had been explained to him by his attorney and that he understood the rights he was giving up, the court’s procedure was more than adequate to obtain a valid waiver of the indictment. Defendant’s additional argument that the procedure conducted with regard to the waiver of appeal was legally inadequate is also unavailing. The observation in the People’s initial brief that defendant waived his right to appeal was not offered to show that defendant lacked any viable claims on appeal. Indeed, as defendant points out, the waiver is irrelevant as to defendant’s purported appellate claims as a waiver of appeal would be ineffective to relinquish a claim that the plea was involuntary or that the indictment was jurisdictionally invalid. The mention of the waiver in the initial brief was to establish that the attorney, having specifically discussed the waiver of appeal with defendant and seen him sign it in open court, had no reason to believe that defendant wanted to appeal and that, absent an express directive from defendant, he had no obligation to inquire if the defendant wanted to appeal. Moreover, defendant, who acknowledged that he discussed the waiver of appeal with his attorney and understood it, was unlikely as a practical matter to have subjectively wanted to appeal, and thus unlikely to have pressed an appeal on the attorney at that time. As to both of these, the reference to the appeal waiver bore on the effectiveness of counsel, not the issues on appeal. Whether the appeal waiver would ultimately have withstood challenge on appeal, then, is effectively beside the point. 40 Defendant’s remaining argument that his letters to his attorney – presented to the court for the first time four years after 460.30's one-year period expired – made a compelling case that his attorney was ineffective should also be rejected. Nowhere in those letters does defendant claim that he informed his attorney of his desire to appeal in a timely manner, or indeed that he informed his attorney at all of his desire to appeal. At most, defendant faults counsel in those letters, written two and one-half years after the plea, for having failed to file the “required” notice of appeal (A76, A77A). He never alleges that, after having discussed a waiver of appeal with counsel and signed it in open court with counsel beside him, he reversed his declared intent and told counsel that he nevertheless wanted to appeal in the Queens case. Thus, if anything, the letters suggest that defendant had never informed counsel that he wished to appeal, and that, accordingly, counsel did not err in failing to file one. Defendant’s further contention that counsel “obviously knew that Mr. Patel was interested in appealing” because counsel filed an appeal in the Nassau case is wholly without merit. Defendant’s Brief at 44, n.1. The two cases were diametrically different for purposes of pursuing an appeal. Unlike in the Nassau case, defendant waived appeal in Queens, after having specifically discussed the matter with counsel and having acknowledged that he understood what counsel had told him. By contrast, no waiver was entered into in the Nassau case. Because defendant discussed pursuing an appeal with 41 counsel and entered into a waiver of his right to appeal in Queens and because defendant did not waive appeal in the Nassau prosecution, counsel had every reason to believe that defendant did not wish to appeal in Queens, but that counsel was still bound to protect defendant’s right to appeal in the Nassau case. Moreover, much more was at stake in the Nassau rape and incest prosecution; indeed, defendant had received 15 years in that case, far more than the concurrent aggregate minimum of two and two-thirds years in his Queens case. That defendant might wish to challenge the far greater sentence, rather than the lesser one, would not have been surprising. Finally, defendant’s verbal indignation throughout his brief – his outrage that the People sought to enforce valid and meaningful procedural bars against him, including 460.30's statutory command (Defendant’s Brief at 4, 45), his complaints about “hypertechnical straws”( Defendant’s Brief at 45), and his unyielding insistence that after obtaining full merits review of his claim not once but twice, he was still entitled to yet another round of review to make new allegations – is, unfortunately, little more than a feigned effort to influence the Court through dramatic rhetoric. Rather than employing overly dramatic rhetoric in response, the People simply note that defendant received the statutory full and fair opportunity to present his claim, and he indeed obtained merits review of that claim, which was all that he was entitled to and indeed all that the statute permitted. Because defendant had that recourse available to him and because 42 the statute bars applications for the relief defendant belatedly sought, the Appellate Division erred in allowing defendant to circumvent the statute by granting his coram nobis petition. * * * * In short, defendant’s arguments in support of providing coram nobis relief even after he had already had an ample opportunity to bring his claim and actually received merits review of his claim are unavailing. Both section 460.30's statutory command and this Court’s decision in Syville are clear, and neither permits invoking coram nobis after the expiration of the jurisdictional statutory time period when defendant has already had an opportunity to present his claim under the statute. Moreover, defendant’s policy arguments do not permit overriding the statutory limitation, which is amply supported by policy rationales of its own. Nor do the issues defendant wishes to raise on appeal surmount the statutory bar. Accordingly, the Appellate Division erred in granting defendant coram nobis relief. 43 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 TRAILL JOHN M. CASTELLANO JOHN McGOLDRICK Assistant District Attorneys of Counsel November 18, 2013 44