The People, Respondent,v.Jarvis Lassalle, Appellant.

Brief

N.Y.January 10, 2013

0 To be Argued by: KEVIN J. BAUER, ESQ. Time Requested for Argument: (10 Minutes) STATE OF NEW YORK Court of Appeals PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. JARVIS LASSALLE, Defendant-Appellant. Erie County Indictment No.: 2005-1380. Appellate Division Docket Number: KA 07-00713. BRIEF FOR DEFENDANT-APPELLANT JARVIS LASSALLE KEVIN J. BAUER, ESQ. Attorney for Defendant-Appellant 6 Ferndale Street Albany, New York 12208 Telephone: (518) 225-1508 Date of Completion: May 18, 2012 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT .............................................................................. 1 QUESTIONS PRESENTED ..................................................................................... 3 STATEMENT OF FACTS ....................................................................................... 4 ARGUMENT .......................................................................................................... 10 JARVIS LASSALLE IS ENTITLED TO CORAM NOBIS RELIEF BECAUSE APPELLATE COUNSEL FAILED TO RAISE THE ISSUE THAT COUNTY COURT ERRED IN FAILING TO INFORM DEFENDANT PRIOR TO THE ENTRY OF HIS PLEA THAT HIS SENTENCE WOULD INCLUDE A PERIOD OF POSTRELEASE SUPERVISION ............................................................................................ 10 CONCLUSION ........................................................................................................ 15 ii TABLE OF AUTHORITIES Page CASES: Mayo v Henderson, 13 F3d 528 .............................................................................. 12 Murray v Carrier, 477 US 478 ................................................................................ 11 People v Borrell,, 12 NY3d 365 .................................................................... 11,13,14 People v Boyd, 12 NY3d 390 ..................................................................................... 2 People v Burns (Appeal No. 1), 70 AD3d 1301 .............................................. 7,10,11 People v Catu, 4 NY3d 242 ............................................................................. passim People v Caban, 5 NY3d 143 ................................................................................. 11 People v Feliciano, 17 NY3d 14 .............................................................................. 11 People v Flores, 84 NY2d 184 ........................................................................... 11,12 People v Hobot, 84 NY2d 1021 ............................................................................... 11 People v Hobson, 39 NY2d 479 .............................................................................. 12 People v Johnson, writ of error coram nobis granted 43 AD3d 1453, revd on other grounds 56 AD3d 1119 ............................ 10,13 People v Keating, ___NY3d___ ............................................................................. 11 People v Lassalle, 55 AD3d 1286, lv denied 11 NY3d 926 ...................................... 7 People v Lassalle, 78 AD3d 1635, writ of error coram nobis denied 85 AD3d 1655, lv granted 17 NY3d 860 ........................................................ 8 People v Louree, 8 NY3d 541 .................................................................................... 2 People v Rivera, 14 NY3d 753 ........................................................................... 10,12 iii Page(s) People v Turner, 5 NY3d 476 ...........................................................................passim STATUTES: Penal Law § 20.00 ...................................................................................................... 4 Penal Law § 140.25 (1) (d) ........................................................................................ 4 Penal Law § 160.15(4) ............................................................................................... 4 Penal Law § 265.09 (1) (b) ........................................................................................ 4 OTHER AUTHORITIES: Fifth Amendment to United States Constitution ....................................................... 8 Sixth Amendment to United States Constitution ....................................................... 8 Fourteenth Amendment to United States Constitution .............................................. 8 Article 1, § 6, of the New York State Constitution.................................................... 8 1 PRELIMINARY STATEMENT Jarvis Lassalle appeals, by permission of Judge Graffeo, granted September 30, 2011, from an order of the Appellate Division, Fourth Department, entered June 10, 2011. The Appellate Division’s order denied defendant’s application for a writ of error coram nobis vacating the order of that court entered October 3, 2008, which unanimously affirmed a judgment of the Erie County Court (Shirley Troutman, J.), rendered February 26, 2007. The judgment convicted Mr. Lassalle, upon his plea of guilty, of robbery in the first degree, and sentenced him to a determinate term of fifteen years plus five years postrelease supervision (PRS). The Appellate Division did not write or otherwise state the reason for its decision Mr. Lassalle seeks to vacate the Appellate Division’s October 3, 2008 order on the ground that his assigned appellate counsel was ineffective because he failed to raise the issue that County Court erred in failing to inform defendant prior to the entry of his plea that his sentence would include a period of PRS. In other words, defendant contends that the court committed a Catu error (see People v Catu, 4 NY3d 242), and that counsel’s failure to brief that issue constituted a Turner error (see People v Turner, 5 NY3d 476) which deprived him of his right to meaningful representation on the direct appeal. 2 Mr. Lassallle’s challenge to the County Court’s error is reviewable by the Court of Appeals even though he waived his right to appeal and did not make a post-allocution motion take back his plea, because County Court did not inform defendant of the period of PRS until the sentencing (R 15-38) (see People v Boyd, 12 NY3d 390, 393; People v Louree, 8 NY3d 541, 545-546). 3 QUESTIONS PRESENTED 1. Whether County Court committed a Catu error by failing to inform defendant prior to the entry of his plea that his sentence would include a period of PRS. The Appellate Division answered in the negative when it denied defendant’s motion. 2. Whether the failure to raise the issue that County Court committed a Catu error in failing to inform defendant prior to the entry of his plea that his sentence would include a period of PRS constitutes ineffective assistance of appellate counsel entitling defendant to coram nobis relief under People v Turner. The Appellate Division answered in the negative when it denied defendant’s motion. 3. Whether the Appellate Division should have granted defendant’s motion for a writ of error coram nobis under the “may have merit” standard. The Appellate Division answered in the negative when it denied defendant’s motion. 4 STATEMENT OF FACTS Jarvis Lassalle was indicted, along with codefendant Steven Burns, on December 2, 2005. The seven count indictment charged Lassalle and Burns with burglary in the second degree (Penal Law § 140.25 [1] [d], 20.00), and four counts of robbery in the first degree (Penal Law §160.15 [4], 20.00). Each man was charged with criminal use of a firearm in the first degree (Penal Law § 265.09 [1] [b]) (R 197-200). Mr. Lassalle pled guilty to the second count of the indictment, robbery in the first degree, on September 27, 2006 (R 13- 33). Before defendant was sworn, his attorney, Andrew C. LoTempio addressed the court “[s]o Mr. Lassalle is clear as to what we are doing here” (R 14). The discussion between defense counsel, defendant, and the court continued as follows: MR. LOTEMPIO: … he is going to plea (sic) under the Second Count of the indictment, which would be to a Class B felony. The court has agreed to give him 15 years concurrent to the sentence that he’s serving in Niagara County which would be equal to him getting an additional seven years to what he’s already serving. And whether you gave him seven years consecutive or 15 years concurrent, he still ends up serving 12 years 10 months and 13 days. So I just want him to understand that that’s what’s – that’s the deal that he’s taking here. That it really is just kind of splitting hairs, whether he gets consecutive or concurrent time, 15 is the number that he’s going to serve in total with 5 the Niagara County case, minus the good time, which works out to be the same thing. THE COURT: Do you understand that, sir? THE DEFENDANT: Yes, Ma’am (R 14-15). With that, Mr. Lassalle was sworn (R 15). The relevant portion of the plea colloquy follows: THE COURT: And do you understand that you could be sentenced up to 25 years followed by five years of post-release supervision? That’s the maximum. THE DEFENDANT: Yes, Ma’am. THE COURT: However, I’ve discussed your circumstances with your attorney and the Assistant District Attorney, and I have agreed to limit your sentence to no greater than 15 years concurrent to the sentence that you’re currently serving with respect to a Niagara County conviction, is that your understanding? THE DEFENDANT: Yes, Ma’am (R 18-19). Steven Burns also pled guilty on September 27, 2006 (R 72-89). The relevant portion of Mr. Burns’ plea colloquy with Judge Troutman was substantially the same: THE COURT: And do you understand that with respect to each of these charges you could be sentenced to up to 25 years followed by five years of post- release supervision, and that those sentences could by law run consecutively? THE DEFENDANT: Yes. 6 THE COURT: However, I have discussed your circumstances with your attorney and the Assistant District Attorney, and this Court has agreed at the time of sentencing that with respect to indictment Number - strike that, 01380-2005, that you would receive a sentence not to exceed 18 years, and with respect to Indictment Number 01622-2005, you would receive a sentence not to exceed 18 years, that those two sentences shall run concurrently, and concurrent to your current sentence as it relates to a Niagara County conviction, is that your understanding? THE DEFENDANT: Yes (R 77-78). Mr. Lassalle was sentenced on February 26, 2007 (R 34- 38). Mr. LoTempio told Judge Troutman that Mr. Lassalle “stands ready for sentence under the commitment” (R 37). After Lassalle addressed the court, Judge Troutman stated: THE COURT: Well, Mr. Lassalle, your attorney worked out a very favorable disposition on your behalf. The crime you committed in this case, Robbery in the First degree, is a very serious offense. And your attorney convinced the Court after convincing the People that 15 years was sufficient, and convinced the Court to run the sentence with your Niagara County case (R 37-38). County Court sentenced defendant to fifteen years plus five years PRS to run concurrent with his Niagara County conviction (R 38). 7 Mr. Lassalle appealed. He was represented by Legal Aid. Assigned appellate counsel raised three issues – the appeal waiver was invalid, the ID procedures were unduly prejudicial, and the sentence was harsh and excessive (R 171- 190). Mr. Lassalle also filed a pro se supplemental brief (R 113- 157). The Appellate Division unanimously affirmed the judgment in a memorandum and order entered October 3, 2008 (R 90). In its memorandum, the Court held that the waiver was valid, and it encompassed defendant’s challenges to the ID procedures and the severity of his sentence (People v Lassalle, 55 AD3d 1286). Judge Ciparick denied Mr. Lassalle’s criminal leave application (11 NY3d 926). The Appellate Division reversed the judgment against Lassalle’s codefendant, Steven Burns on February 11, 2010. The Court vacated Burns’ plea and remitted the matter to County Court “because County Court failed to advise defendant prior to the entry of his plea that his sentences would include periods of postrelease supervision” (People v Burns [Appeal No. 1], 70 AD3d 1301, 1302) (R 40). Mr. Lassalle made the instant motion for a writ of error coram nobis on September 8, 2010 (R 6-47). He contended that appellate counsel’s failure to raise County Court’s failure to inform him that his sentence would include a period of PRS, which was the only meritorious issue in the case, deprived him of his right to 8 effective assistance of counsel under the fifth, sixth, and fourteenth amendments to the United States Constitution, and Article 1, § 6, of the New York State Constitution. Lassalle further contended that County Court’s error “was plain from the plea minutes” (R 11), that there was no reason why the issue could not be raised, and that had assigned counsel done so, he would have obtained a reversal just as his codefendant had (R 10-11). The People did not oppose Mr. Lassalle’s motion. On November 12, 2010, the Appellate Division ordered that the motion be held and decision reserved, and assigned Kevin J. Bauer, Esq., to brief the issue of ineffectiveness of appellate counsel on or before January 11, 2011 (People v Lassalle, 78 AD3d 1635). Defendant’s brief (R 48-61) contended that Mr. Lassalle was entitled coram nobis relief because appellate counsel’s failure to brief the Catu issue constituted a Turner error – a single failing so egregious and prejudicial that it deprived defendant of his right to effective assistance of counsel (People v Turner, 5 NY3d at 480). Defendant further contended that the Appellate Division should have granted his application for coram nobis relief under the “may have merit” standard (R 60). 9 The People’s brief (R 62-71) contended that the Catu issue was not clear, and that defendant had received effective assistance on his direct appeal even though the issue regarding PRS had not been briefed (R 69-70). On June 10, 2011, the Appellate Division denied defendant’s motion (85 AD3d 1655). The court did not write or otherwise state the reason for its decision (R 3-5). Judge Graffeo granted leave to appeal on September 30, 2011 (17 NY3d 860). 10 ARGUMENT JARVIS LASSALLE IS ENTITLED TO CORAM NOBIS RELIEF BECAUSE APPELLATE COUNSEL FAILED TO RAISE THE ISSUE THAT COUNTY COURT ERRED IN FAILING TO INFORM DEFENDANT PRIOR TO THE ENTRY OF HIS PLEA THAT HIS SENTENCE WOULD INCLUDE A PERIOD OF POSTRELEASE SUPERVISION Jarvis Lassalle is entitled to coram nobis relief. The record is clear that County Court failed to inform defendant that his sentence would include a period of PRS. That is, County Court committed a Catu error. Defendant’s position, People v Rivera (14 NY3d 753) to the contrary notwithstanding, is that counsel’s failure to raise the issue on the direct appeal constituted the type of “single failing” that the Court has held is “so egregious and prejudicial” that it deprives a defendant of his constitutional right to effective assistance of counsel (People v Turner, 5 NY3d at 480). Defendant further contends that given the plain Catu error and its reversal of his codefendant’s conviction for that reason (People v Burns [Appeal No. 1], 70 AD3d at 1302), the Appellate Division should have granted his motion under the “may have merit” standard which they have traditionally applied in determining coram nobis applications (see People v Johnson, writ of error coram nobis granted 43 AD3d 1453, revd on other grounds 56 AD3d 1119). With regard to the question whether County Court committed a Catu error by failing to inform Jarvis Lassalle that his sentence would include a period of 11 PRS, defendant contends that given the substantial similarity between his plea colloquy and that of Steven Burns (R 18-19, 77-78), the Appellate Division’s decision in his codefendant’s case establishes the County Court’s error in his case (Burns at 1302). With regard to the question whether the failure to brief the Catu issue deprived defendant of his constitutional right to effective assistance of appellate counsel, it is well settled that “a single, substantial error” can qualify as ineffective assistance (People v Hobot, 84 NY2d 1021, 1022; People v Flores, 84 NY2d 184, 188). In People v Turner (5 NY3d 476), this Court held that the failure to argue that trial counsel’s failure to raise a “clear-cut” and “dispositive” statute of limitations defense constituted an error “so ‘egregious and prejudicial’” that it “deprives a defendant of his constitutional right” to effective assistance of appellate counsel (Turner at 480-481 [quoting People v Caban, 5 NY3d 143, 152]; Murray v Carrier, 477 US 478, 496). The Court’s subsequent cases consistently confirm the lesson taught by Turner – to prevail on a claim of ineffective assistance of counsel based on a single error, the assigned error must be “clear-cut” and “dispositive” (see People v Borrell, 12 NY3d 365, 368; People v Feliciano, 17 NY3d 14, 21; People v Keating, __NY3d___ [Slip op. at 3]). 12 Recognizing that cases where a single issue qualifies as ineffective assistance of counsel are “rare” (Turner at 480), defendant contends that this is such a case. County Court committed a Catu error by failing to inform defendant that his sentence would include a period of PRS. Had it been raised on the direct appeal, County Court’s error would have required a reversal (Catu, 4 NY3d at 244- 245), just as it did in Steven Burns’ case (70 AD3d at 1302; see also Mayo v Henderson, 13 F3d 528, 534). Appellate counsel’s failure to brief the issue, therefore, constitutes a Turner error requiring coram nobis relief. Since the Appellate Division strayed from “the intellectually disciplined dispositional path of this case” (Flores at 186), this Court must reverse that court’s order, grant defendant’s application for a writ of error coram, and direct the Appellate Division to consider the appeal de novo. The Court’s recent decision in People v Rivera (14 NY3d 753) seems to preclude this result. There the Court rejected the defendant’s claim that counsel’s failure to brief a Catu issue constituted ineffective assistance of counsel because he did not demonstrate the absence of a “legitimate explanation” for appellate counsel’s failure (754). In Mr. Lassalle’s view, Rivera does not govern here because it is what then Chief Judge Breitel called an “odd case” in People v Hobson (39 NY2d 479, 486- 491). Rivera is an odd, and, therefore, not a controlling case, because its holding is 13 contrary to the two consistent lines of case law which converge here. In other words, it is contrary to Turner and its progeny which have consistently held that a single error can qualify as ineffective assistance of counsel if the error is “clear- cut” and “dispositive”, and to Catu and its progeny which have consistently held that the failure to inform a defendant that his sentence will include a period of PRS is reversible error. In sum, the Court should abandon Rivera and decide the case on the basis of Turner and Catu. Finally, defendant contends that, given the substantial similarity between his plea colloquy and that of his codefendant, as well as the Appellate Division’s reversal in Steven Burns’ case, the Fourth Department should have granted the motion under the “may have merit” standard (see People v Johnson, 43 AD3d 1453). As Judge Pigott noted in his dissent in People v Borrell (12 NY3d at 370), the Appellate Divisions “routinely grant coram nobis applications when appellate counsel fails to raise an issue that may have merit.” The “may have merit” standard enables the Appellate Divisions to police their decisions for consistency and fairness, ensure that criminal appeals are decided on the merits, and see to it that criminal defendants are provided with meaningful representation, without the need to determine whether counsel’s performance passed constitutional muster. Therefore, the “may have merit” standard gives the Appellate Divisions the flexibility and discretion appropriate to 14 a court that sits to correct errors. This is especially important since the State’s intermediate appellate courts are the court of last resort for virtually all criminal cases. The Court “should not discourage this practice” (Borrell at 370 [Pigott, J] [dissenting]). Therefore, even if the Court rejects defendant’s contention that appellate counsel committed a Turner error by failing to brief County Court’s Catu error, it should remand the matter to the Appellate Division for review under the “may have merit” standard. 15 CONCLUSION The order appealed from should be reversed. Jarvis Lassalle’s motion for a writ of error coram nobis should be granted, and the Appellate Division’s order of October 3, 2008 vacated. The matter should be remitted to the Appellate Division with the direction that defendant’s appeal be considered de novo. Dated: May 18, 2012 Respectfully submitted, Kevin J. Bauer, Esq. Attorney for Defendant-Appellant Jarvis Lassalle 6 Ferndale Street Albany, New York 12208 (518) 225-1508