The People, Respondent,v.Jarvis Lassalle, Appellant.BriefN.Y.January 10, 2013COURT OF APPEALS STATE OF NEW YORK To Be Argued By: DONNA A. MILLING Requested Time: 10 Minutes THE PEOPLE OF THE STATE OF NEW YORK, Respondent V JARVIS LASSALLE, Defendant -Appellant Indictment No. 01380-2005 BRIEF FOR RESPONDENT DONNA A. MILLING Assistant District Attorney of Counsel FRANK A. SEDITA, III District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 858-2424 Fax: (716) 858-7922 July 3, 2012 TABLE OF CONTENTS Page Table of Authorities i Question Presented 1 Preliminary Statement 2 Point. Defendant was not denied effective assistance of appellate counsel 5 Conclusion. The order of the Appellate Division should be affirmed 14 TABLE OF AUTHORITIES CASE S People v .Baldi, 54 NY2d 137 (1981) People v Borrell, 12 NY3d 365 (2009) . People v Burns, 70 AD3d 1301 (4th Dept 2010) People v Catu, 4 NY3d 242 (2005) . . People v Feliciano, 17 NY3d 14 (2011) People v Flores, 84 NY2d 184 (1994) . People v Hobot, 84 NY2d 1021 (1995) . People v Keating, 18 NY3d 932 (2012) People v Lassalle, 55 AD3d 1286 (4th Dept 2008) lv denied 11 NY3d 926 People v Morales, 58 NY2d 1008 (1983) People v Rivera, 14 NY3d 753 (2010) . People v Satterfield, 66 NY2d 796 (1985) People v Stultz, 2 NY3d 277 (2004) . People v Turner, 5 NY3d 476 (2005) . Page 11 9, 11, 12, 13 • • • . 3, 7 • . . . 4, 6 10101010 3 9 • . . • 5, 7 12 10, 11, 12, 13 .5 -I- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent V JARVIS LASSALLE, Defendant -Appellant Indictment No. 01380-2005 BRIEF FOR RESPONDENT QUESTION PRESENTED Was defendant deprived of effective assistance of appellate counsel due to appellate counsel’s failure to raise an alleged Catu error on appeal? -l - PRELIMINARY STATEMENT This is an appeal from an order of the Appellate Division, Fourth Department, entered on June 10, 2011 denying defendant’s application for a writ of error coram nobis. Under Indictment No. 01380-2005, defendant was charged as an accessory with burglary in the second degree, four counts of robbery in the first degree and criminal use of a firearm. The charges arose from defendant’s unlawful entry into Prime Restaurant Supplies on May 6, 2005, where he forcibly stole property from three individuals while displaying what appeared to be a pistol. Defendant waived his right to appeal and pleaded guilty to one count of robbery in the second degree in full satisfaction of the indictment. He was subsequently sentenced as a second felony offender to the promised term of a fifteen year determinate sentence to be followed by a five year period of post release supervision. The sentence was to be served concurrent to a sentence imposed in Niagara County where defendant had pleaded guilty to robbing the employees of Ruben’s Buy and Sell in Niagara Falls, on May 9, 2006, three days after the instant case. The post release supervision term was recorded on the Sentence and Commitment form and the Certificate of Conviction. Defendant -2 - term of post release supervision, nor did he seek to withdraw his plea. On appeal, defendant’s conviction was unanimously affirmed (People v Lassalle, 55 AD3d 1286 [4th Dept 20081 , lv denied 11 NY3d 926) . Appellate counsel raised three issues namely, that defendant’s appeal waiver was invalid, that the lower court’s ruling denying suppression of defendant’s identification was erroneous and that defendant’s sentence was harsh and excessive. Defendant also filed a pro se brief in which he raised four issues, namely, that he was denied the right to testify in the grand jury, that the identification procedures were suggestive, that he was denied effective assistance of trial counsel and that the prosecutor’s conduct denied him due process. By motion papers dated September 8, 2010, defendant filed a petition for a writ of error coram nobis. Defendant claimed that he was denied effective assistance of appellate counsel due to appellate counsel’s failure to have raised the issue that County Court erred in failing to advise him at the time of his plea that his sentence would include a period of post release supervision. Defendant cited the Appellate Division, Fourth Department’s decision in his co-defendant’s case, People v Burns, 70 AD3d 1301 (4th Dept 2010), where the court vacated the plea and reversed the -3 conviction because County Court failed to advise Burns prior to the entry of his guilty plea that his sentence would include a period of post release supervision (People v Catu, 4 NY3d 242 [2005]). The Fourth Department reserved decision and assigned counsel to brief the issue of ineffective assistance of appellate counsel. Defendant’s writ of error coram nobis was denied on June 10, 2011. -4 - POINT DEFENDANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. Defendant contends that he is entitled to coram nobis relief. Specifically, he argues that the record is clear that the court failed to inform him that his sentence would include a period of post release supervision -- a Catu error, and that appellate counsel’s failure to raise this issue on appeal deprived him of effective assistance of counsel. He asks this Court to abandon its decision in People v Rivera, 14 NY3d 753 (2010), and find that the failure to raise a Catu error on appeal constitutes the type of “single failing” deemed so “egregious and prejudicial” in People v Turner, 5 NY3d 476 (2005), so as to deprive a defendant of the constitutional right to effective assistance of counsel. In a related argument, defendant contends that the Appellate Division should have used the “may have merit” standard traditionally applied in determining coram nobis applications. Defendant acknowledges that this Court’s decision in Rivera “seems to preclude” the relief he requests. He does not and cannot distinguish his case from Rivera, but instead claims that it is an “odd” case which is contrary to this Court’s holdings in Turner and Catu. In People v Rivera, this Court held that -5 - defendant had failed to demonstrate the absence of a legitimate explanation for his appellate counsel’s failure to brief the issue whether his guilty plea should be vacated under People v Catu, 4 NY3d 242 (2005) . Defendant Rivera pleaded guilty in July 2004 and was not advised during the plea colloquy that the promised sentence included a period of post release supervision. At his sentence, however, the court imposed on the record, a five year period of post release supervision. In affirming defendant’s conviction, this Court had the opportunity to, but chose not to apply Turner’s “single failing” to defendant Rivera’s claim. This Court should reject defendant’s plea to apply Turner to his case and abandon its ruling in Rivera. Unlike defendant Rivera, defendant did not learn of the imposition of post release supervision for the first time at sentencing. Defendant was advised during the plea colloquy that he was subject to a maximum sentence of twenty five years followed by five years of post release supervision (p 6; numbers in parentheses preceded by “P” refer to pages of the plea transcript) . The court then noted that it had agreed to limit defendant’s sentence to “no greater than 15 years” concurrent to a Niagara County sentence he was then serving (P6) . A common sense reading of the court’s colloquy reflects that defendant was informed that post release supervision would be imposed. Immediately prior to its sentence commitment of “no greater than 15 years,” the court had advised defendant that the maximum sentence was twenty five years and five -6 years post release supervision. Defendant could not have reasonably believed that the court’s commitment to the substantially lesser sentence did not include the five year period of post release supervision. Relying on the Fourth Department’s decision in People v Burns, 70 AD3d 1301 (2010), defendant argues that because his plea colloquy was similar to Burns’, County Court clearly committed a Catu error in his case. Even if this Court determines as the Fourth Department did in Burns, that County Court committed a Catu error, appellate counsel’s failure to raise this issue on appeal did not deny defendant effective assistance of appellate counsel because defendant has not demonstrated the absence of a legitimate explanation for appellate counsel’s failure to brief the issue (see, People v Rivera, 14 NY3d at 754) . Defendant asks this Court to hold that a Catu error is an issue which is as “clear-cut and completely dispositive” as the statute of limitations defense in Turner. In Turner, this Court held that appellate counsel’s failure to argue that trial counsel was ineffective for failing to raise a statute of limitations defense amounted to “egregious and prejudicial error” rising to the level of ineffective assistance (Turner at 481). In so concluding, this Court noted that the statute of limitations defense was both a strong and winning argument, that no reasonable explanation existed for the failure to -7 - have raised it on appeal and had it been raised, defendant’s conviction would have been reversed. In fact, the indictment would have been dismissed and prosecution of defendant would have been barred on double jeopardy grounds. Unlike the “clear-cut and dispositive” statute of limitations defense in Turner, a reading of the plea colloquy did not suggest a “clear-cut and dispositive” Catu error. Catu holds that the absence or failure of any advisement that the plea will subject defendant to a term of post release supervision violates a defendant’s due process rights. Appellate counsel reading defendant’s plea colloquy could have legitimately concluded that no Catu error occurred thereby explaining the failure to have raised the issue. Here, as required by Catu, defendant was advised prior to the entry of his guilty plea that his sentence included a period of post release supervision. Post release supervision was then imposed at sentencing and was reflected on the Sentence and Commitment form and the Certificate of Conviction. At sentencing, defendant registered no protest to his term of post release supervision. Nor did he complain when appellate counsel filed a brief which did not raise a Catu error, nor did defendant raise a Catu error in his four point pro se supplemental brief. -8 - There is no objective basis to conclude that defendant wished to raise a Catu claim and thus risk a much harsher sentence if convicted after trial, given that defendant pleaded guilty for the very purpose of limiting his sentence exposure. A review of defendant’s coram nobis application reveals that he does not allege that he wanted to raise a Catu issue; he only argues that had appellate counsel done so, his conviction would have been reversed as was his co-defendant’s, Steven Burns. Defendant waited two years to criticize appellate counsel’s performance, and only after he became privy to the outcome of his co-defendant’s appeal. As this Court has held, in order to challenge an attorney’s strategic decision, a defendant must submit an affidavit from the attorney demonstrating the lack of a legitimate basis for the challenged decision (see, e.g., People vMorales, 58 NY2d 1008, 1009 [19831). While defendant’s coram nobis application claims that he “invited” appellate counsel’s response to his allegations, defendant’s “invitation” did not constitute a request for an affidavit. Without an affidavit from appellate counsel articulating why he failed to raise a Catu issue, his decision cannot be reasonably criticized or let alone be deemed ineffective (see, People v Borrell, 12 NY3d 365, 369 [2009] ) Appellate counsel had good reason not to challenge the beneficial plea agreement defendant had negotiated in County Court, -9 - risking reversal of defendant’s conviction, at which time defendant would have been facing a six count indictment including four class B violent felonies and consecutive sentencing as a second felony offender of up to one hundred years. In holding that defendant Turner was denied effective assistance of appellate counsel, this Court has since stated that cases such as Turner presented the “rare” case where a single failing in an otherwise competent performance is so egregious and prejudicial as to deprive a defendant of his constitutional right (see, People v Feliciano, 17 NY3d 14, 21 [2011] [failure of appellate counsel to raise novel issue of trial counsel’s failure to argue loss of jurisdiction at violation of probation hearing]; People v Keating, 18 NY3d 932 [2012] [ failure of appellate counsel to raise issue of trial counsel’s failure to object to admission of videotape at trial]) . In pre-Turner cases, this Court has rejected ineffective assistance claims despite significant mistakes by defense counsel (People v Hobot, 84 NY2d 1021 [1995] [overlooking a useful piece of evidence] ; People v Flores, 84 NY2d 184 [1994] [failing to take maximum advantage of a Rosario violation]). Failing to raise a Catu error does not by itself render appellate counsel constitutionally ineffective where his overall performance is adequate (see, People v Stultz, 2 NY3d 277, 285 [2004]). Appellate counsel filed a sixteen page brief containing three - 10 issues supported by appropriate authority and argument and appeared before the Appellate Division for oral argument (cf. Borrell at 371 [(Pigott, J., dissenting) (criticism of appellate counsel for not orally arguing appeal). As a final argument, defendant claims that the Appellate Division should have granted defendant’s coram nobis on the ground that appellate counsel failed to raise an issue that “may have merit.” Citing Justice Pigott’s dissent in People v Borrell, 12 NY3d 365, 370 (2009), defendant argues that this standard would enable the Appellate Divisions to police their decisions for consistency and fairness, see to it that criminal defendants are provided with meaningful representation, without the need to determine whether counsel’s performance passed constitutional muster. In 2004, in People v Stultz, 2 NY3d 277, this Court held that the “meaningful representation” standard set forth in People v BalcIi, 54 NY2d 137, 147 (1981) is the standard which should be used by courts in evaluating effectiveness of appellate counsel. This Court further noted that it was confident that appellate courts would be able to apply the Baldi standard appropriately when dealing with allegations of appellate counsel’s ineffectiveness, because appellate courts are uniquely suited to evaluate what is meaningful in their own arena (Stultz at 284) . Finally, it held that in delineating what is meaningful, “it would be unwise and - 11 possibly misleading to create a grid or carve in stone a standard by which to measure effectiveness” (Stultz at 285) There can be no rules about appellate tactics, but there are certain general guidelines. Effective appellate representation by no means requires counsel to brief or argue every issue that may have merit. When it comes to the choice of issues, appellate lawyers have latitude in deciding which points to advance and how to order them (Stultz at 285) . The essential inquiry in assessing the constitutional adequacy of appellate representation is then, not whether a better result might have been achieved, but whether, viewed objectively, counsel’s actions are consistent with those of a reasonable appellate attorney (see, People v Satterfield, 66 NY2d 796, 799 [19851) . To be meaningful, appellate representation need not be perfect, and representation may be meaningful even where appellate lawyers have failed to brief potentially meritorious issues (see, Stultz at 285) While as Justice Pigott noted in his dissent in People v Borrell, 12 NY3d 365, 370 (2009), appellate courts grant coram nobis applications when appellate counsel fails to raise an issue that the court concludes may have merit, the majority in Borrell, noted that the “relevant and indeed, dispositive threshold issue is not whether defendant’s representation could have been better but - 12 - whether it was, on the whole, constitutionally adequate” (Borrell at 370) . Granting a coram nobis on the ground that the issue “may have merit” is too broad a standard, in light of the fact that any issue “may have merit.” This would restrict the latitude granted to appellate lawyers concerning the choice of issues to raise, and would instead force them to brief or argue every issue that may have merit, precisely what this Court decided was not the meaning of effective appellate representation (see, Stultz at 285) Defendant has failed to meet his burden of demonstrating that he was denied effective assistance of appellate counsel. He has failed to demonstrate that appellate counsel’s failure to brief the Catu issue was not a tactical choice designed to limit defendant’s sentencing exposure, or that this was a “clear-cut and dispositive” issue based on a reading of the plea colloquy. Viewed objectively, counsel’s actions are consistent with those of a reasonably competent appellate attorney who provided meaningful representation in spite of his failure to brief the Catu issue. It is respectfully requested that this Court affirm the Appellate Division’s order denying defendant’s petition for a writ of error coram nobis. - 13 - CONCLUSION THE JUDGMENT OF CONVICTION SHOULD BE AFFIRMED IN EVERY RESPECT. Respectfully submitted, DONNA A. MILLING Assistant District Attorney Of Counsel July 3, 2012 FRANK A. SEDITA, III District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 - 14 -