The People, Respondent,v.Kevin Kruger, Appellant.

Brief

N.Y.April 29, 2014

To be Argued by: BENJAMIN OSTRER Time Requested: 12 Minutes Q.tnurt nf 2\pprala ~tntt nfNtw :Wnrk APL-2013-00198 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- KEVIN KRUGER, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT OSTRER & HOOVLER, P.C. Attorneys for Defendant-Appellant 111 Main Street- P.O. Box 509 Chester, New York 10918 (845) 469-7577 Appellate Division- Second Department Docket No. 2006-6124 Orange County Clerk's Indictment No. 2006-506 Appeal Press, LLC- (914) 761-3600 (212) 267-6602 (16387) TABLE OF CONTENTS TABLE OF AUTHORJTIES ............................................................................... ii PRELIMINARY STATE~NT .......................................................................... ! ARGUMENT: POINT I RESPONDENT HAS FAILED TO ADDRESS THE ~RJTS OF APPELLANT'S PLEA BARGAIN CLAIM ................................... 2 POINT II RESPONDENT HAS RELIED UPON MATTERS AND EVIDENCE WIDCH ARE DEHORS THE RECORD AND WIDCH WERE NOT PRESENTED TO THE APPELLATE DIVISION .......................... 4 CONCLUSION ..................................................................................................... 6 TABLE OF AUTHORITIES Wainright v. Torna, 455 U.S. 586, 588-9 (1982) ................................................. 3, 4 Matter of Acme Bus Corp. v. Board of Education of the Roosevelt Union Free School District, 91 N.Y.2d 51,55 (1997) ........................................................... 4 Board of Educ. v. Gootnick, 49 N.Y.2d 683, 687 ................................................ .4 Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 298 ....... ..4 ii PRELIMINARY STATEMENT The Appellant's request for relief should have been determined on the merits. Matter de hors the Record in the Supplemental Appendix and Respondent's Brief should not be considered. 1 ARGUMENT POINT I RESPONDENT HAS FAILED TO ADDRESS THE MERITS OF APPELLANT'S PLEA BARGAIN CLAIM Respondent fails to address the claims underlying Appellant's Writ of Error Coram Nobis. (See Point III of Defendant-Appellant's Brief). Although the Respondent makes the conclusory claim that "in defendant's case, his underlying appellate claims were weak" (Respondent's Brief at 27), Respondent has otherwise failed to address the merits of those underlying claims. For the reasons set forth in Point III of Appellant's Brief herein, Appellant's appellate claims were meritorious, as the trial Court withdrew the promised 10 year sentencing cap without any articulable basis for doing so. The trial.Court's purported reliance upon the pre-sentence report as justification for withdrawing the promised 10 year sentence was exposed as a mere pre-text when the Court could not identify a single aspect in the pre-sentence report which justified its refusal to impose the promised sentence (A-59; 61-2; 70; 72; and 73) thereby coercing Appellant to withdraw his plea. It was disclosed that the promised sentence was being withdrawn in favor of a 15 year sentence allegedly to satisfy the desires of the victim (A-62). 2 By failing to address this argument, the Respondent appears to have conceded the hilierent merit of Appellant's clahn. Respondent fails to address Appellant's argument that neither the People, nor the State Court system, would suffer harm or prejudice by considering and/or adjudicating the merits of Appellant's Writ ofErrors Coram Nobis (see Point II(b) of Appellant's Brief). As Justice Marshall stated in Wainright v. Torna, 455 U.S. 586, 588-9 (1982), "[r]equiring the state courts to consider untimely applications when a defendant can show that he reasonably relied on his counsel will not impose a heavy burden. [The State is not required to grant the application; it is simply barred from dismissing the application on the ground that it was not timely filed." [dissenting opinion] Respondent fails to address Appellant's argument that no criminal defendant should be denied his appellate rights merely because his attorney fails to timely seek leave to appeal under the circumstances of this case (see Point II of Appellant's Brief generally). The harm to Appellant resulting from his attorney's failure to timely file an application for leave to appeal to this Court is sufficient to warrant the reli~f sought by way of Coram Nobis. It is submitted that the procedural failure of counsel should be subordinate to the appellate rights of a 3 defendant; "where a criminal conviction is challenged on constitutional grounds, permissive review in the highest court may be the most meaningful review a conviction will receive." Torna, supra at 588-9. [dissenting opinion] POINT II RESPONDENT HAS RELIED UPON MATTERS AND EVIDENCE WHICH ARE DE HQRS THE RECORD AND WHICH WERE NOT PRESENTED TO THE APPELLATE DIVISION This Court generally does not consider materials which have not been considered by the court below. In Matter of Acme Bus Corp. v. Board of Education of the Roosevelt Union Free School District, 91 N.Y.2d 51, 55 {1997), this Court struck from the Record evidence which had been stricken from the Record before the Appellate Division "in keeping with the general rule that this Court will not consider material dehors the Record (see, Board of Educ. v. Gootnick, 49 NY2d 683, 687; Crawford v Merrill Lynch, Pierce, Fenner & Smith, f 35 NY2d 291, 298)." Respondent's Supplemental Appendix and Brief rely upon matters de hors the Record and should be stricken. The Supplemental Appendix contains the transcript of a proceedings of March 22, 2007. This transcript was not submitted to the Appellate Division, Second Departinent for consideration in support of the Writ of Error Coram Nobis 4 (A-16, et. seq.) or in opposition thereto. (A-124, et. seq.). In light of the foregoing, the March 22, 2007 transcript should be stricken because it is de hors the Record. In addition, references to the Supplemental Appendix on pages of 11, 12, 13 14, and 15 of the People's Brief and in the related argument within the Brief should also be stricken. 5 CONCLUSION The Appellate Division's March 20,2013 Decision and Order denying Appellant's Writ of Error Coram Nobis should be reversed and granted or remanded to the Appellate Division for consideration on the merits, and/or leave be granted to this Court to appeal the Appellate Division's December 1, 2009 Decision and Order. Dated: Chester, New York November 6, 2013 Ostrer & Hoovler, P.C. Attorneys for Appellant Kevin Kruger 111 Main Street Chester, New York 10918 Benjamin Ostrer and David A. Brodsky (on the brief) Respectfully submitted, ~~ Benjamin Ostrer 6