The People, Respondent,v.Kevin Kruger, Appellant.BriefN.Y.April 29, 2014Ar.ument Time Requested: To Be Argued By: 12 MINUTES ANDREW R. KAss COURT OF APPEALS STATE OF NEW YORK APL No. 2013-00198 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - KEVIN KRUGER, Appellant. BRIEF FOR THE RESPONDENT FRANCIS D. PHILLIPS,!! DISTRICT ATTORNEY FOR ORANGE COUNTY ATTORNEY OF RESPONDENT 18 SEWARD AVENUE MIDDLETOWN, NEW YORK 10940 TEL. 845-615-3640 ANDREW R. KAss ASSISTANT DISTRICT ATTORNEY OF COUNSEL OCTOBER 24, 2013 TABLE OF CONTENTS TABLE OF AUTHORITIES.ii PRELIMINARY STATEMENT 1 INTRODUCTION AND STATEMENT OF FACTS 1 PLEA AND SENTENCING PROCEEDINGS 5 POINT I .16 THE APPELLATE DIVISION CORRECTLY DENIED DEFENDANT’S APPLICATION FOR A WRIT OF ERROR CORAM NOBIS THAT SOUGHT PERMISSION TO FILE A LATE LEAVE APPLICATION. (In Response to Defendant’s Points I and II). POINT II 42 DEFENDANT’S REMAINING CLAIMS ARE NOT PROPERLY BEFORE THE COURT. CONCLUSION 44 Table of Authorities Cases: Coleman v Thompson, 501 US 722 [1991] Chaidez v United States, 568 US —, 133 SCt 1103 Chalk v Kuhlman, 311 F3d 525 [2d Cir. 2002] Daniels v United States, 532 US 374 [2001] Department of Social Services o/b/o Beatrice V.P. [1983] DiGugiieirno v smith, 366 F3d 130 [2d Cir. Douglas v California, 372 US 353 [1963] Edwards v Carpenter, 529 US 446 [2000] Evitts v Lucy, 469 US 387 [1985] Halbert v Michigan, 545 US 605 [2005] Hernandez v Greiner, 414 F3d 266 [2d Cir. Herrera v Collins, 506 US 390 [1993] Jones v Barnes, 463 US 745 [1983] Lawrence v Walsh, 549 US 327 [2007] Muniz v United States, 236 F3d 122 [2d Cir. 2001] O’Sullivan v Boerckel, 526 US 838 [1999] .21,28,31 [2013] 21, v Trustum CD, 97 AD2d 831 2004] 2005] 19,30, 36 23 30 21 21 19 31 19 22 22 28 31 30 30 29 —11— .19,24 • 31 • 25 .30,34 33 39 30 25 25 32 25 NYS2d 627 [Sup Ct Kings Cty Dec 8, 39 3,26,27 4, 17, 18,41 4 38 38 33 People v Bachert, 69 NY2d 593 [1987] People v Baldi, 54 NY2d 137 [1981] People v Bleakley, 69 NY2d 490 [1987] People v Cuadrado, 9 NY3d 362 [2007] People v D’Alessandro, 13 NY3d 216 [2009] People v De Renzzio, 23 AD2d 842 [1965] People v Ford, 86 NY2d 397 [1995] People v Gray, 86 NY2d 10 [1995] People v Hanley, 20 NY3d 601 [2013] People v Hansen, 95 NY2d 227 [2000] People v Kelly, 5 NY3d 116 [2005] People v Kirkland, 1 Misc 3d 904 (A), 781 2003] People v Kruger, 68 AD3d 784 [2009] People v Kruger, 104 AD3d 875 [2013] People v Kruger, 21 NY3d 1017 [2013] People v Langford, 206 Misc 628 [Cty Ct NYCty 1954] PeoplevMirenda,57NY2d261 [1982] People v Mitchell, 81 NY2d 519 [1991] —111— People v Muller, 11 NY2d 154 [1962] . 32 People v Parris, 4 NY3d 41 [2004] 38 People v Pepper, 53 NY2d 213 [1981] 32 People v Scott, 47 AD3d 849, lv denied, 10 NY3d 870 [2008] 38 People v Simmons, 100 AD3d 809 [2012], ly denied, 20 NY3d 1014 [2013] .. 21 People v Stultz, 2 NY3d 277 [2004] 19,30,31 People v Syville, 15 NY3d 391 [2010] 4, .... 16, 17, 18, 19, 20, 23, 24, 25, 26, 29, 32, 33, 34, 36, 37, 40, 41, 42, 43 People v Taylor, 65 NY2d 1 [1985] 32 People v Thomas, 47 NY2d 37 [1979] 41, 42 People v Ventura, 17 NY3d 675 [2011] 24,25 People v Washington, 86 NY2d 853 [1995] 28 People v West, 100 NY2d 23 [2003] 19, 38 Policano v Herbert, 7 NY3d 588 [2006] 33 Restrepo v Kelly, 178 F3d 634 [2d Cir 1999] 23, 25, 26 Rodriguez v Artuz, 990 F Supp 275 [SDNY 1998] 30 RossvMoffitt, 417US 600 [19874] 20 Strickland v Washington, 466 US 668 [1984] 26 Sumner v Mata, 449 US 539 [1981] 18 -iv- Wainwright v Torna, 455 US 586 [1982] Williams v Oklahoma, 395 US 458 [1969] Statutes 20,23 19 CPL 440.10 CPL 440.20 CPL45O.10[1] CPL 460. 10[5] CPL46O.10[5][a] CPL 460.20 CPL 460.30 CPL46O.30[1] CPL 470.15 [6] 28 Usc §2244[d][1] 38, 39, 27, 25 27 19 27 27 42 41 38 24 33 20, 25, 28, 34, 37,4, 16, 17, 21, 20, 20, 40, 28, -v COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, APL No. 2013-00198 - against - KEVIN KRUGER, Defendant-Appellant. x BRIEF FOR THE RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Susan Phillips Read, Kevin Kruger appeals from a Decision and Order of the Appellate Division, Second Department dated March 20, 2013, which denied his application for a writ oferror coram nobis seeking leave to file a late leave application from a Decision and Order of the Appellate Division, Second Department which affirmed a judgment of the County Court, Orange County (De Rosa, J.) rendered on March 22, 2007. INTRODUCTION AND STATEMENT OF FACTS By Orange County Indictment Number 2006-5 06, defendant was charged with attempted murder in the second degree, burglary in the first degree, burglary in the second degree, and criminal possession of a weapon in the third degree (A: 34-3 5).’ The charges against defendant stem from an incident that occurred during the early morning hours on July 10, 2006 in Town of Blooming Grove, Orange County, New York. On that day, defendant entered the victim’s home, went upstairs to her bedroom, and then attempted to smother the victim with a pillow while she was asleep. During the attack, the victim woke up and kicked and screamed, and defendant fled. On August31, 2006, defendant appeared before the County Court, Orange County (De Rosa, J.), along with his attorney, and pleaded guilty to burglary in the second degree in satisfaction of the indictment in return for an initial promise by the court to cap his sentence at ten years imprisonment. On October 24, 2006, defendant again appeared before the County Court. At that appearance, the court informed defendant that based on its review of the pre sentence report and the victim’s impact statement, it could not abide by its promised sentence. Following a further conference, the matter was adjourned by the defense after the People indicated that they would recommend a fifteen year sentence. Thereafter, on November 29, 2006, after the court explained its reasons for departing from its promised sentence, defendant’s motion to withdraw his guilty plea was granted, and the matter was scheduled for pretrial hearings. Numbers preceded by the letter “A” refer to the respective pages of the Appendix filed by Defendant-Appellant; numbers preceded by “SA” refer to Respondent’s Supplemental Appendix. -2- On March 2, 2007, a pretrial hearing was held before the County Court (De Rosa, J.). Following the hearing, the court held that defendant’s statements that were made as part of the request for pedigree information were admissible. In turn, the court ruled that a second statement could be used for impeachment purposes only. Thereafter, defendant again appeared before the County Court on March 22, 2007. Following a conference, defendant agreed to plead guilty to burglary in the first degree in return for a determinate sentence of twelve and one- half years and a five year period of post-release supervision. Additionally, defendant agreed to waive his right to appeal as an express condition to his plea of guilty. On the same date, defendant agreed to be sentenced, and the court sentenced him to the promised sentence of twelve and one-half years and a five- year period of post-release supervision. In turn, defendant again executed a signed written waiver of his right to appeal. Defendant is currently serving that sentence. On direct appeal, defendant claimed that the trial court erroneously refused to sentence him to the original promised sentence, and that the trial court unfairly coerced him into withdrawing his initial guilty plea (A: 82-100). On December 1, 2009, the Appellate Division unanimously affirmed defendant’s judgment, finding that defendant’s challenge to his conviction was barred by his waiver of his right to appeal (People v Kruger, 68 AD3d 784 [2009]) (A: 9). On December 23, 2009, -3- the People served defense counsel with notice of entry of the Appellate Division’s Decision and Order decision (A:29-3 1)). Defendant did not seek leave to appeal or ever move for an extension of time in which to do so pursuant to CPL 460.30. On November 13, 2012, the District Attorney’s Office received defendant’s motion for a writ of error coram nobis wherein defendant claimed the denial of effective assistance of appellate counsel based on his attorney’s failure to file a discretionary leave application from the Appellate Division’s decision affirming his conviction on direct appeal (A: 14-27). The People opposed defendant’s application (A: 124-139). On March 20, 2013, the Appellate Division denied defendant’s application, holding that “[c]ontrary to defendant’s contention, People v Syville, 15 NY3d 391 [2010], does not afford him the requested relief’ (People v Kruger, 104 AD3d 875 [2013]) (A: 8). On July 15, 2013, a Judge of this Court (Read, J.) granted defendant’s application for leave to appeal from the Appellate Division’s March 20, 2013 Decision and Order (A: 7) (People v Kruger, 21 NY3d 1017 [2013]). On appeal, defendant claims that the Appellate Division erroneously denied his application for a writ of error coram nobis and that his rights where violated when the trial court coerced him into withdrawing his original guilty plea. -4- PLEA AND SENTENCING PROCEEDINGS On August 3 1, 2006, defendant, along with his attorney, appeared before the County Court, Orange County (De Rosa, J.). As an initial matter, the Court advised that the People were offering a guilty plea to burglary in the first degree under count two of the indictment, and the trial assistant indicated that the People were recommending a sentence of twenty-one years. In turn, the Court indicated that its position was a cap of ten years. The Court also indicated that it would read the PSI and would go from there. In response, defense counsel advised that defendant was prepared to accept the offer (A: 50). Next, defendant was placed under oath, and the Court also advised him that he would have to answer truthfully and that if he had a question, he could stop the Court and ask his attorney. Additionally, the Court explained to defendant that by pleading guilty, he was waiving certain rights, including the right to a jury trial, the right to force the prosecution to prove his guilt beyond a reasonable doubt, the right to cross-examine and confront all the witnesses, the right to subpoena his own witnesses, and the right to testify on his own behalf at any hearing or at trial. In addition, the Court explained to defendant that he had the right to remain silent and a Fifth Amendment privilege against self-incrimination and that by pleading guilty he was waiving all of those rights. In response, defendant indicated that he -5- understood that he was waiving those rights and that he also understood that his plea of guilty would have the same effect as a conviction after trial (A: 50-51). In addition, the Court separately explained to defendant that as part of his negotiated plea of guilty, that the People were requiring that he sign a waiver of his right to appeal his sentence and his conviction, which the trial court also described as a waiver of a substantial right. The Court also confirmed that defense counsel had reviewed the written waiver with defendant, that defendant did not have any questions about the waiver, and that no one had coerced him to sign the waiver or made any promises in return for his signature on the waiver that he had not heard on the record. Additionally, the Court expressly confirmed that defendant understood that the waiver of his right to appeal was separate and apart from and in addition to the other rights that he waived by entering a plea of guilty (A: 5 1-52). Thereafter, defendant indicated that he was pleading guilty to the class B violent crime of burglary in the first degree under count two of the indictment, that he was pleading guilty because he was in fact guilty, and that no one had made any promises to him in return for his plea of guilty that he had not heard on the record. Defendant also indicated that he had not taken any drugs, alcohol, medication or substance that would cause him not to think clearly, that he had a clear head and -6- knew what he was doing, that he had enough time to speak with his attorney, and that he also did not have any questions for the Court. Having advised the Court of his intention to plead guilty, defendant then admitted that during the early morning hours of July 10, 2006, that he entered a home in the Town of Blooming Grove, that he entered through a window, and that when he entered he had the intent to commit a crime inside the house (A: 52-54). Defendant then stated “no” when asked if he used or threatened to use a dangerous instrument against an occupant of the home. At that point, defense counsel advised that defendant had been using drugs and had the intent to go in and steal money, that he recalled going upstairs and looking for money, and that he also had a recollection of a woman screaming and running out. However, according to defense counsel, defendant did not have a recollection of placing a pillow against the victim’s face while she was asleep. In response to those comments, the Court then confirmed that defendant did not contest that allegation. Defendant stated, “no,” and thereafter, the Court also confirmed that incident to the plea that the defense was withdrawing any and all motions that were currently pending. In turn, based on defendant’s representations, the Court found that defendant had made a knowing, voluntary, and intelligent waiver of his rights and accepted defendant’s guilty plea to burglary in the first degree in satisfaction of the indictment (A: 54-55). Prior to -7- adjourning the matter for sentencing, the Court also advised defendant that its promises were conditioned on his coming back to court, his cooperation with the Department of Probation, and his staying free from arrest between the time of the plea and sentencing (A: 55). On October 24, 2006, defendant again appeared before the County Court. Following a conference, the Court advised the parties that based on its review of the pre-sentence report and more specifically the victim’s account of the incident, that it had gained a different perspective as to what had actually occurred in contrast to what it understood from the earlier conferences in the matter, and that, as result, it had spoken with counsel in chambers and advised that it was unable to abide by its original promise as to its intended sentence (A: 59). At that point, the court reviewed its and defendant’s options, which included defendant’s acceptance of whatever sentence it deemed appropriate or to ask the court to vacate his guilty plea, which it indicated it would do because it could not keep its promise (A: 59). The Court also made a record of the fact that the trial assistant had spoken with the victim, who was present in the courtroom, and likewise, that defense counsel had also spoken with defendant and indicated that it wanted to see if the parties could agree on a sentence in excess of the original sentence often years. In turn, the trial assistant indicated that if defendant would agree to a truly negotiated -8- sentence, the People’s position would be fifteen years, which reflected a split between the difference of their original position and the court’s original promise often years. Thereafter, defense counsel addressed a number of aspects about the sentencing promise, and counsel also advised that he did not yet have a sufficient opportunity to fully discuss the proposed fifteen year sentence with defendant. Based on that circumstance, counsel also requested that the matter be adjourned for a new date to afford defendant the opportunity to discuss and consider the matter or to otherwise move to take the plea back. The Court then acknowledged that although it did not happen often, in this case, its review of the pre-sentence report had caused it to change its mind. In addition, the Court granted the defense application for an adjournment, and the matter was adjourned until November 9 (A: 60-66). On November 29, 2006, defendant’s matter again appeared on the calendar. On that date, defendant was represented by a different attorney, and in recognition of that fact, the Court briefly recapped what had occurred on the prior court dates and restated the earlier respective positions. Additionally, the Court indicated that if defendant wished to retain his plea, the sentence would be fifteen years and not the original sentence often, and that if he did not, it would allow him to have his plea back, and the matter would be placed on the calendar for hearings and trial -9- (A: 70). In turn, the Court asked the People for their sentencing position, which the assistant indicated was still twenty-one years. The Court also confirmed that defendant wanted to withdraw his plea (A: 70-71). At the same time, however, the defense asked that the Court proceed with its original cap of ten years, and suggested that in light of the Court’s indication that it was not prepared to adhere to its original promise, the defense was somehow “compelled to take the plea back.” In response, the Court again explained its reasoning, and also advised that defendant was entitled to have his plea back. Additionally, the Court indicated that defendant would be afforded the opportunity to file motions because the plea had been entered prior to the return date on the original motion and that counsel would not be limited to the prior motions and would be permitted to file his own motions. In addition, the defense also suggested that defendant was entitled to have the case transferred to a different judge (A: 71-74). Defendant’s matter was then adjourned for motions and pretrial hearings (A: 75). On March 2, 2007, a pretrial Huntley hearing was held before the County Court. Following the hearing, the Court held that defendant’s statements that were made while the police obtained his pedigree information were admissible. The Court also suppressed a second statement, holding that it was admissible for Harris or impeachment purposes only (A: 109). Thereafter, on March 22, 2007, -10- defendant again appeared before the County Court. Following an additional conference that was held relative to defendant’s matter, the People offered a revised offer to a plea to burglary in the first degree in return for a recommended sentence of seventeen years, a permanent order of protection, and a five year period of post-release supervision. In turn, defense counsel indicated that based on the Court’s representation that it would impose a sentence of twelve and one- half years in exchange for a plea to burglary in the first degree under the second count of the indictment, defendant was prepared to plead guilty and to also waive his right to appeal, which had been a condition to the original plea. The Court then confirmed its intention to impose a sentence of twelve and one-half years with a five year period of post-release supervision, and in turn, the defense confirmed that understanding of the revised plea agreement (SA: 2-6). Next, defendant was again sworn in, and was advised that if he had a question, he could stop at any time and speak to his attorney. Additionally, the Court also explained that prior to its acceptance of the plea, it was required to explain the various rights that defendant was waiving by his plea of guilty. The Court then reviewed each of those rights, including the right to have a jury trial, the right to force the prosecution to bring witnesses into court to testifi against him while under oath, the right to confront and cross-examine those witnesses, and —11— the right to testify on his own behalf at any hearing, trial, or proceeding as well as the right to subpoena witnesses to testify on his own behalf. In addition, the court explained that defendant also had the right to remain silent and a Fifth Amendment privilege against self-incrimination. Thereafter, the court confirmed that defendant understood that by pleading guilty, he was waiving all of those rights, and defendant also indicated that he understood that his guilty plea had the same effect as a conviction after trial (SA: 6-8). The Court next explained that as part of the negotiated plea, the People have required that he sign a waiver of his right to appeal his sentence and conviction. The Court also explained that the waiver of the right to appeal involved the waiver of a substantial right, confirmed that defense counsel had reviewed the waiver with defendant and that defendant did not have any questions about the waiver. In addition, defendant indicated that no one had threatened, forced, or coerced him to sign the waiver and that no one had made any promises to him in return for his signature on the waiver that he had not heard on the record. Finally, the Court also expressly confirmed that defendant understood that the rights that he was waiving as part of the waiver of his right to appeal were separate and apart from and in addition to the other rights that he waived incident to his plea (SA: 8-9). Thereafter, defendant stated that he was pleading guilty under the second -12- count of the indictment, which charged him with the class B violent felony of burglary in the first degree. Defendant also stated that he was pleading guilty because he was in fact guilty, that no one had threatened or forced him to plead guilty, and that no one had made any promises to him in return for his guilty plea that he did not hear on the record. Additionally, defendant indicated that he had not taken any drugs, alcohol, medication, or any substance that would cause him to not think clearly, that he had a clear head, and knew what he was doing. Defendant also indicated that he had enough time to speak with his attorney and that he did not have any questions for either his attorney or for the Court (SA: 9- 11). Having entered a plea of guilty, defendant then admitted that during the early morning hours of July 10, 2006, he entered a residence that was located in the Town of Blooming Grove and that he entered the residence through a window. Defendant also admitted that entered with the intent to commit a crime (SA: 11- 12). At that point, defendant was asked whether he encountered an individual while inside the residence. Defendant responded that he did not know. In light of that response, the trial assistant then asked defendant if he had the opportunity to speak with his attorneys, including both his current and his prior attorney and whether defendant understood the evidence that would presented against him at -13- trial, including the victim’s testimony. Defendant indicated “yes,” and defendant also admitted that his cell phone and fingerprints had been recovered from the home. Finally, defendant indicated that he could not controvert the evidence that while he was inside the residence that he used a pillow as a weapon. Additionally, defendant indicated that based on his discussion with his attorneys, he decided that it was in his best interest to plead guilty, that as part of his conversations with his attorney, he also spoke with his attorneys about any defenses that he could have raised in the case, and that based on those conversations, he was pleading guilty. Thereafter, defendant also admitted that he did not have permission to enter the residence or to commit any crime therein (SA: 12-14). Defense counsel also withdrew any and all motions that were currently pending. Based on defendant’s statements, the Court accepted defendant’s plea after finding that he had made a knowing, intelligent, and voluntary waiver of his rights, and found him guilty of the class B violent felony offense of burglary in the first degree(SA: 15). The Court also confirmed that a pre-sentence or PSI had been ordered before the vacatur of the prior plea and that defense counsel had the chance to review the pre-sentence report. Defendant’s matter then proceeded to sentencing after confirming with the parties that there was no legal reason that the defendant could not be sentenced (SA: 15). Thereafter, after hearing from the -14- People, the victim, who addressed the Court in person, and the defense, after it again reviewed the history of the matter and its reasoning for its sentencing position of twelve and one-half years imprisonment plus five years post-release supervision, and what it characterized as the victim’s chilling statement, the Court adhered to its promise and imposed a sentence of twelve and one-half years and a period of five years post-release supervision. In addition, the Court imposed the mandatory surcharge. Finally, the Court confirmed that defendant had resigned the previously executed waiver of his right to appeal, and defendant was advised of his right to appeal his conviction and sentence (SA: 16-33). -15- POINT I THE APPELLATE DIVISION CORRECTLY DENIED DEFENDANT’S APPLICATION FOR A WRIT OF ERROR CORAM NOBIS THAT SOUGHT PERMISSION TO FILE A LATE LEAVE APPLICATION. (In Response to Defendant’s Points I and II). Just short of three years after the Appellate Division affirmed defendant’s judgment on direct appeal on December 1, 2009, and some two years and ten months after the time period in which defendant had to seek leave to this Court also expired, defendant sought coram nobis relief in the Appellate Division predicated on his appellate counsel’s failure to file a timely discretionary leave application. Defendant acknowledged that his motion was made more than one year after the People’s service of notice of entry of the Appellate Division’s Decision and Order and therefore that his time for seeking permission to file a late discretionary leave application to this Court pursuant to CPL 460.30 had expired (A17, 24). However, he argued that this Court’s decision in People v Syville (15 NY3d 391 [2010]) nevertheless afforded him an additional avenue for relief, and that pursuant to the precedent established in Syville, the Appellate Division was also authorized to allow him to file a late discretionary leave application beyond the one-year period authorized under CPL 460.30. The Appellate Division denied -16- defendant’s application, holding that People v Syville, 15 NY3d 391, did not afford him the requested relief (People v Kruger, 104 AD3d 875 [2013]). As shown below, the Appellate Division correctly denied defendant’s application, and it should be affirmed in its entirety.2 Claiming that defense counsel failed to seek leave to the Court of Appeals, defendant seeks to extend this Court’s decision in People v Syville (15 NY3d 391) to his circumstance and thereby recognize the availability of coram nobis relief in the case of an attorney’s failure to file a discretionary leave application. Thus, he seeks an additional remedy above and beyond the one-year time period afforded to him under CPL 460.30. Because the Sixth Amendment right to counsel does not extend to the filing of a discretionary leave application, and because defendant in his brief concedes that a “defendant is not Constitutionally entitled to an attorney to pursue a discretionary appeal,” that a “defendant’s due process rights are not implicated by ineffective assistance in filing a discretionary appeal,” and that “[a]dmittedly, the delay by [his] counsel did not cause him to lose a right to appeal to this Court, since [he] only maintained a permissive right to appeal ...,“ (Appellant’s brief at 18), defendant fails to state a cognizable claim of ineffective 2 The same attorney representing defendant on this appeal represented defendant in the coram nobis proceedings and on direct appeal, as well as in County Court. -17- assistance of appellate counsel. Accordingly, the Appellate Division correctly denied his application for coram nobis relief. Preliminarily, defendant contends that the Appellate Division failed to consider his claims on the merits. To be sure, absent permission to file a late leave application, the Appellate Division was jurisdictionally precluded from considering defendant’s arguments that related to his direct appeal because those arguments were not properly before the intermediate appellate court. Thus, it is not surprising that the court did not address the additional substantive claims that related to the claims that defendant originally argued on direct appeal. However, contrary to defendant’s contention, the Appellate Division considered and rejected his substantive arguments in favor of coram nobis relief, holding that People v Syville “[did] not afford him the requested relief’ (People v Kruger, 104 AD3d 875). By definition, the Appellate Division’s decision constituted a determination on the merits (see g Sumner v Mata, 449 US 539, 548 [1981 j)(recognizing that a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit). Moreover, the Appellate Division also correctly denied defendant’s application for coram nobis relief that sought to extend the extraordinary relief that was recognized in Syville to the filing of a late discretionary leave -18- application. There is no constitutional right to take an appeal in criminal cases. Rather, the right to take an appeal is purely a state statutory right that must be affirmatively exercised and preserved( People v Syville, 15 NY3d at 397; People v West, 100 NY2d 23, 26 [2003]; see also Evitts v Lucy, 469 US 387, 393 [1985]). Once that right is established, however, the state cannot arbitrarily deny a defendant of such a right to take an appeal, and that right also includes the right to effective assistance of appellate counsel (c People v Syville, 15 NY3d at 397; Evitts v Lucy, 469 US at 394, 396; Williams v Qklahoma, 395 US 458 [1969]; Douglas v California, 372 US 353 [19631). In New York, the right to take a direct appeal by all criminal defendants to the intermediate appellate court from a criminal judgment is as of right (CPL 450.10[1]). In furtherance of that right, the state not only affords criminal defendants the right to take a direct appeal to the intermediate appellate courts, but it further recognizes the right to effective assistance of appellate counsel under both the federal and state constitutions (c Jones v Barnes, 463 US 745 [1983]; People v Stultz, 2 NY3d 277 [2004]). The state also provides an avenue for review a claim of ineffective assistance of appellate counsel through the common law writ of error coram nobis (sc People v Bachert, 69 NY2d 593 [1987]). More recently, the Court also recognized coram nobis as an additional emergency avenue for relief beyond the one-year period -19- authorized in CPL 460.30 to defendants who did not file a timely notice of appeal as a result of their attorneys’ failure. The Court held that under those circumstances the resulting loss of the right to take a direct appeal to an intermediate appellate court resulted in the denial of due process (s People v Syville, 15 NY3d 391). In contrast, defendant’s claim that his attorney failed to file a timely leave application to the New York Court of Appeals implicates only the statutory right of a discretionary secondary appeal, and therefore, an entirely different set of rights (CPL 460.10[5]; 460.20). Critically, in order to show attorney dereliction for the purposes of establishing a claim of ineffective assistance of counsel, defendant must necessarily also demonstrate the existence of the underlying right to effective assistance of counsel. The right to counsel itself is viewed as a predicate to a claim of ineffective assistance of counsel. Otherwise, no cognizable claim exists. Here, defendant cannot satisfy that threshold requirement. Unlike in the case of his direct appeal to the intermediate appellate court, there is no constitutional right to counsel on a second level discretionary state appeal (Wainwright v Torna, 455 US 586, 587-588 [19821; Ross v Moffitt, 417 US 600, 610-611 [1974]). In fact, in his brief, defendant concedes the fact that he is not constitutionally entitled to “an attorney to pursue a discretionary -20- appeal” and that “a defendant’s due process rights are not implicated by ineffective assistance in filing a discretionary appeal” (Appellant’s Brief at 18). Defendant also concedes that his attorney’s “delay did not cause him to lose a right to appeal to this Court, since [he] only maintained a permissive right to appeal to this Court” (Id.). By implication, an attorney’s failure to file a discretionary leave application fails to state a claim of ineffective assistance of counsel because there is no constitutionally recognized right to counsel in connection with such discretionary applications ( Coleman v Thompson, 501 US 722 [1991]; Chalk v Kuhlman, 311 F3d 525, 528-529 [2d Cir. 2002]; cc DiGuglielmo v Smith, 366 F3d 130 [2d Cir. 2004]) (failure to assert a particular claim within a discretionary leave application). Importantly, the Appellate Division Second Department applied the same reasoning citing both federal and state caselaw to hold that a defendant “cannot claim a state or a federal constitutional right to effective assistance of counsel on a motion pursuant to CPL 440.20 to set aside a sentence .... “(People v Simmons, 100 AD3d 809 [2012], ii denied, 20 NY3 d 1014 [2013]). Similarly, in older authority, the Appellate Division applied the same rational in civil proceedings (c Department of Social Services o/b/o Beatrice V.P. v Trustum CD, 97 AD2d 831, 832 n [1 983](inasmuch as there is no constitutional right to counsel in certain civil proceedings, no -21 - constitutional right to effective assistance of counsel is implicated). Accordingly, the right to counsel is a prerequisite to a claim of ineffective assistance of counsel, and because defendant fails to demonstrate the existence of a right to counsel in relation to the filing of a discretionary leave application, his related ineffective assistance of counsel claim and the basis for seeking coram nobis relief also necessarily fail. Moreover, the United States Supreme Court decision in Halbert v Michigan (545 US 605 [2005)) does not require a different result. There, the Michigan law was changed to limit defendants who pleaded guilty to only the right to a discretionary first level appeal, a circumstance that does not exist in New York. In New York, a defendant has the right to appeal as of right to the intermediate appellate court regardless of whether he pleaded guilty or was convicted after trial. Additionally, the success of the application and therefore the ability to seek appellate review at the first level at all in Michigan depended on the merits of the claim. Thus, Halbert does not extend the right to counsel in connection with a discretionary appeal to the filing of a discretionary leave application at a secondary level of appeal (ç çg Hernandez v Greiner, 414 F3 d 266, 269-270 [2d Cir 2005 j)(concluding that the existence of a constitutional right to counsel on a second-level appeal is in doubt; the existence of the right on a discretionary -22- second level appeal is still further in doubt; and it is only less doubtful that the right exists as to a second level appeal available to a litigant after judicial discretion has been exercised to permit such an appeal). Simply put, by virtue of his concession on this point and because defendant fails to show that the right to counsel also extends to the filing of a discretionary leave application, the failure to file a discretionary leave application does not state a claim of ineffective assistance of appellate counsel (ç Wainwright v Torna, 455 US 586; Chalk v Kuhlman, 311 F3d at 528-529). For the same reasons, the failure to file a timely leave application in this instance also did not result in the constructive denial of appellate counsel. The narrow exceptions cited in Syville that warranted the granting of coram nobis relief all implicated the right to take a first tier appeal as of right to the intermediate appellate court and not the filing of a discretionary leave application ( Restrepo v Kelly, 178 F3d 634 [2d Cir. 1999]). The relief granted in Syville is rooted in the federal constitutional principle that “{t]he Due Process Clause prohibits a defendant from being denied the right to appeal as a consequence of the violation of another constitutional right - the right to effective assistance of counsel on direct appeal” (15 NY3d at 398). In turn, the Court held that the common law writ of error coram nobis remained available to alleviate a -23- constitutional deprivation when the defendant had no other procedural recourse (14. at 400 citing People v Bachert, 69 NY2d 593 [1987]). Thus, the decision did not create any new rights, i.e.; the right to effective assistance of counsel. Rather, it recognized coram nobis relief as a procedural mechanism to protect against the violation of an existing federal constitutional right. Therefore, in the absence of a federal constitutional right to counsel in connection with the filing of a discretionary leave application, the procedural avenue for relief that was recognized in Syville is constitutionally unnecessary. The critical distinction between a criminal defendant’s first-tier appeal to the intermediate appellate courts that is as of right and a permissive appeal to this Court is explained by the Court itself. “The invariable importance of the fundamental right to an appeal as well as the distinct role assumed by the Appellate Divisions within New York’s hierarchy of appellate review (citations omitted) makes access to intermediate appellate courts imperative” (People v Ventura, 17 NY3d 675, 680-68 1 [2011]). “The intermediate appellate courts possess expansive power given their fact-finding function as well as their ability to reach unpreserved issues pursuant to their ‘interest ofjustice’ authority (c CPL 470.15[6]). As such, these broad review abilities empower the Appellate Divisions to play a uniquely critical role in the fair administration ofjustice, -24- especially when a defendant’s path of appeal is often foreclosed after final determination by the intermediate appellate court” (j. at 681). In other words, the combination of the unique factual review power afforded to the intermediate appellate courts, coupled with their interest ofjustice jurisdiction, reflects both a “constitutional and statutory design” that is intended to permit criminal defendants to avail themselves of review of their convictions and the factual evidence by the intermediate appellate courts ( People v Ventura, 17 NY3d at 68 1-682; see People v Bleakley, 69 NY2d 490, 493-494 [1987]). In contrast, with few exceptions that are not applicable to this appeal, this Court is empowered “to pass only questions of law,” and, in the majority of instances, the avenues of appeal to this Court are more limited, and “its purview strictly prescribed” (ç People v Ventura, 17 NY3d at 681; see g± People v Hanley, 20 NY3d 601, 604-605 [2013]; People v Gray, 86 NY2d 10 [1995]; People v Kelly, 5 NY3d 116, 118 [2005]). Based of those critical distinctions, and the clear legislative intent to ensure that the first tier appeal that is as of right is a meaningful right, the Svville decision filled a critical gap that was recognized in Restrepo and like cases that effectively left those defendants without an effective means of taking an as of right appeal to the appellate courts notwithstanding the relief afforded under both CPL 440.10 and CPL 460.30. Pivotally, neither that -25- concern nor any other constitutional concern is implicated by an attorney’s failure to file a discretionary leave application. Most importantly, unlike the entire class of defendants whose access to a direct appeal was effected by Svville, in this case, defendant already received appellate review of his claims in the Appellate Division (ç People v Kruger, 68 AD3d 784). Defendant’s reliance on S ville is predicated upon the idea that the common law writ of error coram nobis continues to be available in the appellate courts to alleviate a constitutional wrong when there is no other procedural recourse (Appellant’s brief at 14)(quoting People v Syville, 15 NY3d at 3 99-400). But, because defendant fails to establish a constitutional deprivation, by his own argument, coram nobis relief is unavailable. Accordingly, defendant’s reliance on Syville is misplaced. Moreover, in contrast to the right to take an appeal that was implicated by counsel’s failure to file a timely notice of appeal in Syville, defendant fails to demonstrate any resulting prejudice as required by Strickland (çç Strickland v Washington, 466 US 668 [1984]). In fact, so great was the right that was effectively lost by counsel’s failure to file the notice of appeal, that the federal courts held that pleadings established prejudice per se (ç Restrepo v Kelly, 178 F3d 634). Here, all that defendant can suggest is that he intended to file a timely leave application. He cannot, with any degree of certainty, show that his -26- application would have been granted. Furthermore, in defendant’s case, his underlying appellate claims were weak, and the Appellate Division held that review of his claims was barred by his knowing waiver of his right to appeal (People v Kruger, 68 AD3d 784). An appellate attorney reviewing the case might well have reasonably concluded that it was unlikely that leave would be granted at all. As such reasonable minds could have disagreed as to the prospects for obtaining further review in this Court, and it would not have been objectively unreasonable in defendant’s matter to have foregone further review in the Court of Appeals altogether. In fact, as defendant concedes, his attorney’s delay “did not cause him to lose a right to appeal to this Court, since [he] only maintained a permissive right to appeal ....“ (Appellant’s brief at 18). Moreover, in weighing defendant’s constitutional arguments, it is important to remember that the State already provides for a statutory remedy that effectively affords a defendant with an additional twelve month period beyond the initial thirty day period in which a defendant has the ability to move for permission to file a late leave application (CPL 460.lO[5]; 460.20; 460.30[l]). Consequently, under the current statutory scheme, a defendant has thirteen months in which to seek relief. Additionally, even the initial thirty-day period does not run until service of a copy of the decision is completed (CPL 460.10[5][a]; see People v -27- Washington, 86 NY2d 853 [1995]). Thus, in defendant’s matter, notice of entry of the Appellate Division’s December 1, 2009 decision and order was not served until December 23, 2009, which effectively afforded defendant 52 days in which he could have initially sought leave to this Court. In total, defendant thus had thirteen months and 22 days or nearly fourteen months in which he could have moved for leave to appeal to this Court. Against that framework, the reasonableness of the State’s rule should be judged by the fact that the defendant has twelve additional months in which to assert grounds for permission to file a late leave application, and if permission is then granted, he is also afforded an additional thirty days in which to then file his application (CPL 460.30[1]). In view of the United States Supreme Court decisions in Herrera v Collins (506 US 390 [1993]) and in Coleman v Thompson (501 US 722) involving noncompliance with a thirty day schedule, New York’s provision that affords a defendant thirteen months from the date of service of notice of entry to file a discretionary leave application is eminently reasonable and is fully protective of a defendant’s statutory right to seek a discretionary appeal to this Court. In this instance, there is no need to recognize an additional remedy beyond the remedy that is already provided for pursuant to CPL 460.30 because no constitutional deprivation exists. -28- In recognition of his inability to demonstrate a constitutional deprivation with respect to the filing of a discretionary leave application, defendant now argues that the failure to seek leave effectively deprives him of the ability to seek further review of his claims in the federal courts because the failure to seek leave results in his failure to exhaust his state court remedies (see O’Sullivan v Boerckel, 526 US 838 [1999]). This claim, too, which is raised for the first time on appeal in this Court, should be rejected as a basis for extending coram nobis relief to the filing of discretionary leave applications. In the first instance, this argument is unpreserved for appeal. Defendant never asserted this ground in the Appellate Division and also never argued that his access to the federal courts involved the same sort of fundamental rights implicated by his as of right appeal to the Appellate Division. Consequently, this branch of defendant’s arguments is not properly before the Court (ç People v Syville, 15 NY3d at 401-402)(finding that the People’s argument that defendant was required to show due diligence which was raised for the first time in the Court of Appeals was not properly raised on appeal). In any event, defendant’s argument concerning access to the federal courts is also without merit. Whether or not a defendant ultimately seeks federal habeas corpus review is collateral to the question of whether defendant received effective -29- assistance of counsel in the state courts (çg People v Ford, 86 NY2d 397 [1995]). In the context of a direct appeal, the constitutional standards for determining whether defendant received effective assistance of appellate counsel consider both the quality and the organization of counsel’s arguments on appeal and whether counsel failed to raise a meritorious issue that would have affected the outcome of the appeal. The simple failure to raise a non-frivolous claim does not establish a claim of ineffective assistance of appellate counsel (sc People v Stultz, 2 NY3d 277 [2004]; Jones v Barnes, 463 US 745 [1983]). Moreover, there is no constitutional right to the filing of a first federal habeas corpus petition, and like other forms of post-judgment review, federal habeas corpus relief “is not available indefinitely and without limitation” (see Daniels v United States, 532 US 374, 381 [2001]; see also Lawrence v Walsh, 549 US 327, 336-337 [2007])(an attorney’s miscalculation of the statute of limitations is insufficient to warrant equitable tolling); Muniz v United States, 236 F3d 122, 128 [2d Cir. 2001]; Rodriguez v Artuz, 990 F Supp 275, 283 [SDNY 1998] (statute of limitations is not an unconstitutional suspension of the writ); çç js People v Cuadrado, 9 NY3d 362, 365 [2007]). In fact, the United States Supreme Court has expressly rejected this sort of claim with respect to exhaustion and the application of a state procedural default, holding that a claim of ineffective assistance of counsel -30- suffices as cause for a state procedural default only if the error or omission constitutes an independent constitutional claim( Edwards v Carpenter, 529 US 446 [2000]; see Coleman v Thompson, 501 US 722). Furthermore, defendant’s proposed standard that would take into account a defendant’s future ability to seek federal habeas corpus relief is unworkable. In fact, in view of the many procedural complexities that determine whether a claim is properly preserved for federal review by the habeas court, virtually every decision as to how to proceed in a criminal case can affect the defendant’s subsequent ability to raise the particular claim in the federal courts. Yet, that has never been a factor for determining ineffective assistance of counsel. Nor could it be because such considerations are not determinative of whether a defendant received meaningful representation in the state courts (compare People v Baldi, 54 NY2d 137 [1981]). If anything an attorney’s preoccupation with the federal rules for exhaustion could interfere with his ability to make strategic decisions during the state court proceedings. Even at the appellate stage, it is not objectively unreasonable for defense counsel to forego certain claims in favor of raising other, stronger, claims on appeal or in support of a discretionary leave application (c People v Stultz, 2 NY3d at 285; see also Jones v Barnes, 463 US 745)(recognizing that there is no constitutional duty for appellate counsel to raise every conceivable -31- non-frivolous claim on appeal). Indeed, that very skill is viewed as the hallmark of an effective appellate litigator. Thus, the Court should reject this argument. Again, the decision in Syville granted extraordinary relief to prevent a constitutional deprivation in the first instance. It had nothing to do with ensuring a defendant’s future access to the federal courts. Additional public policy considerations also support the denial of the requested relief. First, society has a certain degree of expectation in finality with respect to a criminal conviction, and especially in the case of a guilty plea, coupled with the defendant’s written waiver of his right to appeal his conviction and sentence. As this Court has repeatedly stated, a guilty plea is intended to mark the end of a criminal prosecution and not the gateway to further litigation (c People v Taylor, 65 NY2d 1, 5 [1985]; People v Hansen, 95 NY2d 227, 230 [2000]). It is also the case that the question of finality has certain practical implications and does not simply exist in a theoretical sense. As a general proposition, a conviction becomes final upon the unconditional denial of a defendant’s application for leave to appeal to the Court of Appeals plus 90 days in which a defendant can seek direct review by the United States Supreme Court (çç People v Pepper, 53 NY2d 213, 222 [1981]; People v Muller, 11 NY2d 154, 156 [1962]). Beyond the obvious considerations that relate to the importance of allowing the victim of a -32- crime to move on from the incident and to have confidence in the conviction as well as the People’s ability to try an older case, finality also impacts on the application of other areas of law. For instance, without finality, this Court would be unable to determine when and under what circumstances a change in the law would be entitled to retroactive application on collateral review( People v Pepper, 53 NY2d at 220; People v Mitchell, 80 NY2d 519, 525-526 [1991]; People v Rudolph, 21 NY3d 497 [2013]; Policano v Herbert, 7 NY3d 588 [2006]). In addition, the one-year statute of limitations that is applicable in federal habeas corpus proceedings is measured from the point when a state court conviction becomes final (28 USC §2244[dj[l]). Unlike a motion made pursuant to CPL 460.30, which has a one-year deadline, there is no statutory deadline for the filing of a writ of error coram nobis. There is also no rule that prevents a defendant from filing a successive coram nobis application (ç People v D’Alessandro, 13 NY3d 216 [2009]). Extension of Syville to the filing of a discretionary leave application could therefore have the effect of disrupting all sense of finality in the state’s criminal judgments by allowing defendants years after the fact to move to reopen their appeals simply by claiming that their attorney failed to file a discretionary leave application. Worse still, a defendant could intentionally delay his claim for years with the aim of taking advantage of future changes in the law. Even in -33- Syville, the Court recognized the importance of the issue, but owing to other procedural obstacles, the Court did not decide whether a defendant could be subject to a due diligence requirement ( 15 NY3d at 401-402). Again, there is no constitutional right to collaterally attack a state court judgment, and thus, in the interests of finality, the Court could properly grant extraordinary relief in Syville while declining to extend the same avenue of relief in relation to the filing of a discretionary leave application (ç 15 NY3d at 400 n. 2)(recognizing that in most instances the strict enforcement of the one-year limitation contained in CPL 460.30 is constitutionally permissible); ç People v Cuadrado, 9 NY3d at 365)(recognizing that it is a valid exercise of the Legislature to regulate the manner in which a defendant is able to raise his claims in a post-judgment motion). Beyond the question of finality, extending coram nobis to the filing of discretionary leave applications carries additional unintended consequences that go well beyond a defendant’s ability to seek permission to file a late leave application after the expiration of the one-year period allowed by CPL 460.30. Indeed, such a ruling would open up a true pandora’s box, requiring consideration of an entirely different set of considerations that are wholly unrelated to defendant’s application. First, because the relief sought in this proceeding is -34- predicated upon the right to counsel, extending Syville to the filing of discretionary leave applications would also permit defendants to collateral attack the sufficiency and adequacy of any previously decided leave application. Such attacks brought well after the fact would undoubtedly overwhelm the system with tallismanic claims of ineffective assistance of counsel, supported by nothing more than endless second guessing as to which claims should have been presented in the leave application and how those claims that were presented could have been better framed. Moreover, such attacks would prove to be impossible to judge by a reviewing court because there are no objective means to determine if leave would have been granted in any individual case. It is for good reason that, to date, reviewing federal courts have declined to find the right to counsel in relation to the filing of discretionary leave applications. Second, and equally, if not more important, if the right to counsel were found to exist, than such a ruling would require the immediate assignment of a second assigned counsel in all Anders appeals where the judgment is affirmed on appeal to determine the appropriateness of seeking leave. In turn, all of these considerations would further require the Court to consider whether the ruling -35- should then apply retroactively on collateral review.3 If such a decision were found to be retroactive on collateral review, undoubtedly the ruling would serve as an open invitation to every defendant in every case where either no leave application was filed or where the application was filed and was denied to file a coram nobis application, a circumstance that promises to swamp the respective Appellate Divisions. All of these further considerations also militate against the application of Syville to the filing of discretionary leave applications. Moreover, even within the framework of the emergency exception to the one-year grace period that was recognized in Syville, defendant’s application fails. More particularly, defendant failed to even remotely demonstrate the exercise of due diligence that would have afforded him the ability to first seek permission to file a late discretionary leave application pursuant to CPL 460.30. In recognizing the continued viability of the common-law remedy of coram nobis as an available avenue for emergency relief in Syville, as noted above, this Court did not decide whether the defendant was required to make a showing of due diligence. In fact, in Syville, the Court left that question open because it found that issue of due In light of the Supreme Court’s decision in Chaidez v United States, 568 US —, 133 SCt 1103 [20131), the recognition of the right to counsel in connection with the filing of a discretionary leave application would clearly constitute a new rule. Unless such a rule were found to apply retroactively on collateral review, defendant would not be entitled to relief at all. -36- diligence was not properly before the Court. If the Court were to accept defendant’s arguments and find coram nobis relief applicable to the filing of discretionary leave applications, defendant’s matter presents the opportunity for the Court to both consider and apply a due diligence requirement to its review of defendant’s application to file a late leave application. Moreover, when such a due diligence standard is applied, defendant’s motion should be denied for that additional reason.4 As evidenced in Syyille, this Court did not intend to make the emergency relief afforded by coram nobis available in all circumstances merely by the defendant’s asking. Indeed, the Court itself suggested that it would be the rare case where the emergency exception that it recognized must be utilized (ç People v Syville, 15 NY3d at 400 n. 2). Equally important, in the same sentence, the Court acknowledged that in most instances, the strict enforcement of the one- year limitation contained in CPL 460.30 was constitutionally permissible (Rh). Here, defendant fails to show that he exercised due diligence in bringing this application or that the application of a due diligence standard would be impermissible. As a threshold matter, a requirement that a defendant exercise due In defendant’s matter, the People preserved the issue of due diligence in the Appellate Division. -37- diligence in seeking relief in the form of coram nobis does not offend due process and even more particularly when it comes to the ability to file a belated discretionary leave application. Because the right to take an appeal is purely a state statutory right and is not a federal or a state constitutional right as alleged by defendant, a state court may properly apply a due diligence standard when affording defendant relief. In addition to the one-year period for bringing a motion to extend the time to take an appeal, CPL 460.30 itself requires that such a motion “must be made with due diligence” (CPL 460.30[lJ). In other instances, the courts also apply a due diligence standard. For example, a defendant may not claim to have been deprived of his right to take an appeal as a result of missing minutes owing to his own delay in seeking poor persons relief or in bringing the matter to the attention of the appellate court ( People v Mirenda, 57 NY2d 261 [1982]; People v Parris, 4 NY3d 41, 48 [2004]; People v Scott, 47 AD3d 849, y denied, 10 NY3d 870 [2008]). Likewise, based on the excessive length of the delay, a defendant may be deemed to have abandoned his appeal altogether (c People v West, 100 NY2d 23). Moreover, from a historic standpoint, relief sought by way of the conmion law writ of error coram nobis was subject to the doctrine of laches (see People v Langford, 206 Misc 628 [Cty Ct NY Cty 1954])(defendant’s petition for writ of error coram nobis held to be barred by laches where defendant -38- delayed bringing petition by more than ten years); People v De Renzzio, 23 AD2d 842 [1 965])(recognizing that the application could be denied upon the ground of laches). Although laches may not act as a bar to statutory relief in a form of a motion to vacate judgment (ç People v Kirkland, 1 Misc 3d 904(A), 781 NYS2d 627 [Sup Ct Kings Cty Dec. 8, 2003]), nothing appears to bar the doctrine’s application in this proceeding. Indeed, to the extent that CPL 460.30 offers guidance, as noted above, that statute includes a requirement for due diligence. Here, defendant’s motion is completely devoid of any showing of due diligence. In fact, beyond the self-serving and conclusory representations that defendant advised counsel to pursue a leave application with the Court of Appeals and that the application would be filed at no addition cost and that it was not until approximately February, 2012 that defendant learned that the time to file the application had expired, defendant’s motion provides no details at all. He provides no details as to any contact with his attorney after December, 2009. Nor does he provide any record of any attempt to contact either the Appellate Division or this Court to determine whether, in fact, his attorney filed the application or to determine its status. Yet, by counsel’s own admission, defendant was aware of the leave process within thirty days of counsel’s receipt of notice of entry of the -39- Appellate Division’s December 9, 2009 decision. By all accounts, it then appears that defendant did nothing for more than two years until February, 2012. Even then, he waited another nine months before counsel then filed the motion in the Appellate Division. Importantly, during the entire time, defendant never claims that he was affirmatively misled by counsel into believing that the application had been filed. Nor does he even allege that the State somehow affirmatively interfered with his ability to communicate with either his attorney or the courts between January, 2010 and January, 2011, when he could have learned that no application had been filed and pursued relief under CPL 460.30. In short, defendant’s pleadings fall far short of circumstances that were present in Syville that would qualify him for emergency relief to avoid a due process violation. In fact, for the reasons that are discussed above, the thirteen month time period in which New York State effectively afforded defendant the ability to file a discretionary leave application with either the Appellate Division or with this Court was eminently fair and reasonable. Finally, to the extent that defendant also seeks permission to extend the time It is the affirmative practice of members of the Orange County District Attorney’s Office to file copies of proof of service of notice of entry in all cases prosecuted in County Court with the County Clerk. Thus, were there any question as to whether notice of entry had been served in defendant’s case, that information could have been confirmed through both the District Attorney’s Office and through the Orange County Clerk. -40- in which to seek leave to the Court of Appeals, absent a showing of a resulting due process violation (see People v Syville, 15 NY3d at 399-401), the time frames in which to seek leave to the Court of Appeals, including the one-year grace period afforded under CPL 460.30, are jurisdictional in nature, and the Court lacks the authority to grant defendant’s request (çç People v Thomas, 47 NY2d 37 [1979]). In sum, defendant fails to establish a claim of ineffective assistance of appellate counsel and or a resulting due process violation. For these reasons, and because the State already affords defendants an adequate statutory remedy for seeking permission to file a late discretionary leave application that is eminently fair and reasonable, the Appellate Division correctly held that People v Syville did not afford defendant the requested relief (People v Kruger, 104 AD3d 875). -41- POINT II DEFENDANT’S REMAINING CLAIMS ARE NOT PROPERLY BEFORE THE COURT. In addition to his principle arguments, defendant also addresses the merits of his underlying direct appeal and his grounds for seeking leave to appeal to this Court (Appellant’s brief at 22-28). These additional arguments are not properly raised on this appeal. Importantly, all that defendant seeks is permission to file a late leave application. Accordingly, at this juncture, he is jurisdictionally barred from addressing the merits of his underlying appeal for the simple reason that permission was not granted to file a late leave application. The fact that defendant impermissibly combined his two different sets of claims, one set from the denial of his application for a writ of error coram nobis and the second set from the underlying appeal, into a single leave application is of no legal moment because at that stage, the Court lacks the authority to consider the merits from his underlying direct appeal. In fact, the procedural mechanisms for taking an appeal are jurisdictional in nature and therefore cannot be avoided or waived(çg People v Thomas, 47 NY2d 37). Thus, defendant’s additional arguments are legally irrelevant and should be ignored or struck (cf CPL 460.20). In Syville, the Court -42- specifically noted that “the coram nobis proceedings sought only the right to pursue an appeal - they are not a substitute for a new trial, appeal, or other statutory remedy” (15 NY3d at 401). Similarly, in this case, as noted above, defendant only sought permission to file a late leave application, relief that is entirely different from the filing of the substantive application itself. Accordingly, defendant’s additional substantive arguments that address the merits of the arguments that he raised on his direct appeal are not properly raised in this appeal. -43- CONCLUSION The Decision and Order of the Appellate Division should be affirmed. Respectfully submitted, FRANCIS D. PHILLIPS, II District Attorney of Orange County Attorney for Respondent 18 Seward Avenue Middletown, New York 10940 (845) 615-3640 ANDREW R KASS Assistant District Attorney Of Counsel Dated: Middletown, New York October 24, 2013 -44- COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, AFFIRMATION CERTIFYING DIGITAL SUBMISSION - against - APL No. 2013-00 198 KEVIN KRUGER, APPELLANT. x STATE OF NEW YORK ) ss.: COUNTY OF ORANGE ) I, Andrew R. Kass, an Assistant District Attorney in the Office of Francis D. Phillips, II, the District Attorney for Orange County, and an attorney duly admitted to the practice of law before the Courts of the State of New York, hereby certify pursuant to CPLR 2105 that I have compared the foregoing digital copy of the Respondent’s Brief on appeal that is being filed electronically with the Clerk of the Court using Court Pass with the hard copies filed simultaneously with the Court of Appeals and that that the foregoing is an identical digital copy of the corresponding document. Dated: Middletown New York October 25, 2013 ANDREWR KASS Executive Assistant District Attorney COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, AFFIDAVIT OF SERVICE Respondent, -against-- API- 2013-00198 KEVIN KRUGER Appellant X STATE OF NEWYORK: ss.: COUNTY OF ORANGE: The undersigned, being duly sworn, says: I am not a party to the action, am over 18 years of age and reside in Orange County, New York. That on October 25, 2013, I caused three (3) copies of the annexed RESPONDENT’S BRIEF and SUPPLEMENTAL APPENDIX in PEOPLE v. KEVIN KRUGER, to be served on Ostrer & Hoovier, P.C., 111 Main Street, P.O. Box 509, Chester, New York 10918, by depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State. cz (The name signed must be printed beneath) CAROL M. BARNES Sworn to before me this 25th day of October, 2013. Notaubic /:•- n:’-s n-i k.h ty Cc LJ- nI 4, Q.