The People, Respondent,v.Kevin Kruger, Appellant.BriefN.Y.April 29, 2014To be Argued by: BENJAMIN OSTRER Time Requested: 12 Minutes Qtnurt nf l\pptala ~tatr nf N rw ljnrk APL-2013-00198 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- KEVIN KRUGER, Defendant-Appellant. 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 AUTHORITIES ............................................................................... ii QUESTIONS PRESENTED ................................................................................ ! JURISDICTIONAL STATEMENT ..................................................................... 2 STATEMENT OF FACTS .................................................................................. .3 ARGUMENT: POINT I THE APPELLATE DIVISION ERRED BY FAILING TO CONSIDER THE SUBSTANTIVE MERITS TO APPELLANT'S PETITION FOR WRIT OF ERROR CORAM NOBIS ................................................................... !! POINT II THE APPELLATE DIVISION SHOULD HAVE CONSIDERED THE MERITS OF APPELLANT'S PETITION FOR WRIT OF CORAM NOBIS UNDER SYVILLE OR AN EXTENSION TO SYVILLE .................................................... 16 POINT III THE ISSUE TO BE RAISED ON APPEAL IS MERITORIOUS SINCE APPELLANT'S RIGHTS WERE VIOLATED WHEN COUNTY COURT COERCED HIM TO WITHDRAW HIS PLEA WITHOUT IDENTIFYING GROUNDS CAPABLE OF REVIEW ON APPEAL .............................................................. 22 CONCLUSION .................................................................................................... 28 TABLE OF AUTHORITIES Baldwin v. Reese, 541 U.S. 27 (2003) ................................................................... 19 Cuyler v. Sullivan, 446 U.S. 335 (1980) ................................................................. 17 Duncan v. Hemy, 513 U.S. 364 (1995) .................................................................. 19 Evitts v. Lucy, 469 U.S. 387 (1985) .................................................................. 17, 18 Gideon v. Wainwright, 372 U.S. 335 (1963) .......................................................... 16 North Carolina v. Alford, 400 U.S. 25 (1970) ....................................................... 24 People v. Bachert, 69 N.Y.2d 593 (1987) ............................................................... 16 People v. Baxley, 84 N.Y.2d 208 (1994) .................................................................. 2 People v. Brown, 14 N.Y.3d 113 (2010) ............................................................... .24 People v. Callaway, 24 N.Y.2d 127 (1969) ........................................................... 14 People v. Crimmins, 38 N.Y.2d 407 (1975) ............................................................. 2 Peoplev. Danny G., 61 N.Y.2d 169 (1984) ......................................... 22, 23, 25,26 People v. Hidalgo, 91 N.Y.2d 733 (1998) ............................................................. 22 People v. Hill, 9 N.Y.3d 189 (2007) ...................................................................... 23 People v. McConnell, 49 N.Y.2d 340 (1980) ................................................... 23, 26 People v. Montgomery, 24 N.Y.2d 130 (1969) ...................................................... 14 People v. Murray, 15 N.Y.3d 725 (2010) ............................................................... 25 ii TABLE OF AUTHORITIES (Continued) People v. Seab?rg, 74 N.Y.2d 1 (1989) .................................................................. 22 People v Selikoff, 35 N.Y.2d 227 (1974) .................................................... 10, 22, 25 People v. Syvil!e, 15 N.Y.3d 391 (2010) .............................. .!, 2, 10, 12, 13, 14, 15, 16,18,20,21 People v. Townsley, 20 N.Y.3d 294 (2012) .............................................................. 2 Perezv. Wainwright, 640 F.2d 596 (1981) ...................................................... 16, 17 Picardv. Connor, 404 U.S. 270 (1971) ............. , ................................................... 19 Roe v. Flares-Ortega, 528 U.S. 470 (2000) ........................................................... 17 Ross v. Moffitt, 417 U.S. 600 (1974) ...................................................................... 18 Simon v. Usher, 17N.Y.3d 625 (2011) .................................................................. 11 Spence v. Superintendent, 219 F.3d 162 (2d Cir. 2000) ....................................... 23 Wainrightv. Torna, 455 U.S. 586 (1982) ........................................................ 18, 20 STATUTES: C.P.L. §460.10 ........................................................................................................ 11 C.P.L. §460.30/460.30(1) ........................................... 2, 9, 11, 12, 13, 14, 15, 16,17 28 U.S.C.S. §2254(a) .............................................................................................. 18 28 u.s.c.s. §2254(b )(1) ......................................................................................... 19 iii QUESTIONS PRESENTED QUESTION: Did the Appellate Division, Second Department err as a matter of law by failing to consider the merits to Defendant-Appellant's Writ of Error Coram Nobis under People v. Syvi!le, 15 N.Y.3d 391 (2010) which mandates consideration of the merits of just such an application where as here, Appellant reasonably believed his appellate rights were being pursued? ANSWER: Yes. 1 JURISDICTIONAL STATEMENT This appeal arises from the Appellate Division, Second Department's Order dated March 20,2013 denying Defendant-Appellants' Writ of Error Coram Nobis for leave to file a late application for leave to appeal to this Court under C.P.L. §460.30(1) (as extended by this Com1 in People v. Syville, 15 N.Y.3d 391 (20 !0)). See March 20, 2013 Second Depm1ment Decision and Order at A-8. 1 This Court has jurisdiction to hear an appeal of the Second Department's denial of Defendant-Appellants' Writ of EJTor Coram Nobis. !d. See also People v. Townsley, 20 N.Y.3d 294 (2012)(1eave to appeal granted to review denial of Writ of Error Coram Nobis for abuse of discretion as a matter oflaw); People v. Baxley, 84 N.Y.2d 208 (1994)(denial of Writ of En-or Coram Nobis subject to review by Court of Appeals as to abuse of discretion as a matter of law); People v. Crimmins, 38 N.Y.2d 407 (1975). Defendant-Appellant was granted leave by one of the Judges of this Court onJuly 15,2013. A-7. 'As used herein, "A-" refers to the applicable page in the accompanying Appendix ("A") of Defendant-Appellant which supports the applicable evidentiruy assertion(s) contained herein. 2 STATEMENT OF FACTS On July 27, 2006, Defendant-Appellant was charged in a tour count Indictment with attempted murder in the second degree under Penal Law §§ 110.00 and I 25.25( I), burglary in the first degree under Penal Law § 140.30(3 ), burglary in the second degree under Penal Law § 140.25(2), and criminal possession of a weapon in the third degree under Penal Law §265 .02(1 ) arising from an alleged incident occuning on or about July I 0, 2006 in which Defendant-Appellant was alleged to have unlawfully entered and remained in "the residence of Catherine St. Pien·e located at. Sylvan Trail, Town of Blooming Grove, with intent to commit a crime therein, and, in effecting entry or while in the dwelling or in immediate flight therefrom, ... used or threatened the immediate use of a dangerous instrument, to wit: a pi1Jow." A-34 to A-35. Appellant entered a not guilty plea. The prosecution alleged that, On or about July I 0, 2006, at approximately 1 :40 am, the defendant unlawfully entered and remained in a dwelling located at Sylvan Trail, in the Town of Blooming Grove, County of Orange, State of New York, with intent to commit a crime therein. The defendant entered the home by cutting a screen located on a first floor window and climbing into the home. Once inside the home the defendant proceeded to the second floor of the home where he found the sole occupant asleep in her bed. The defendant then attempted to end the life of Catherine St. Pierre by smothering her with a pillow that he 3 found in the bedroom. (See prosecution Voluntaty Disclosure) A-40. Appellant subsequently acknowledged forcing a window open and breaking items on a windowsill in a failed entty but admitted that his actions constituted en1:1y into the residence. At arraignment the prosecution advised the Court in great detail of the allegations underlying the indictment in opposing the Appellant's bail request (arraignment). On August 31, 2006, Orange County Court Judge considered the People's recommended "sentence of21 years in state prison" (A-50) and offered "a cap of ten" years (A-50) in exchange for a guilty plea to a single count of burglary in the first degree, a Class "B" felony. The promised plea was conditioned upon Appellant "cooperat[ing] with the Department of Probation in getting [his] pre- sentence report done, stay[ing] free from violations of the law and free from arrest between today's date and the sentencing date." A-55. Based upon the Court's promised sentence cap of I 0 years, Appellant entered a guilty plea. A-50 to A-55. It is undisputed that Appellant complied with the terms and conditions of his plea agreement. See A-59 to A-61, e.g. 4 Notwithstanding the foregoing, on October 24, 2006, the scheduled sentencing date, County Cou1i withdrew its promised cap of I 0 years and advised it would impose a sentence of 15 years - a compromise between the 10 year sentence promised to Appellant and the 21 year sentence sought by the prosecution. A-59; A-61 to 62; A-70. The Comi offered no specific reason for the increased sentence. A-62. The County Comi did not allege any violation of the plea conditions by Appellant, acknowledged that "[t]he Comi's promise was I 0 years," but claimed that the Pre-sentence repmi and the victim's account of the offense "gave me a completely different perspective as to what actually occurred here." A-59. The Pre-sentence report contained no new facts which had not been provided to the Comi at the arraignment. Despite being requested to provide specific grounds for the proposed enhanced sentence, including any aspect of the Pre-sentence report or the victim's account of the offense upon which the Comi had relied, County Court was unable to identity any specific grounds which justified withdrawing its promise of a sentence not exceeding 10 years. The matter was adjourned to permit Appellant to consider the significantly increased sentence tenn. 5 At a subsequent appearance, on November 29, 2006, the County Court acknowledged that it could not elaborate on the grounds for withdrawing its promised sentence of 10 years. Appellant's counsef requested "for purposes of the record, I request that the Comi advise if there was anything in particular with respect to the Victim Impact Statement or the PSI that [had influenced the Comi to withdraw its promised sentence." A.72. A-72. However, County Court responded as follows: It was the totality of what I read in that PSI and especially the Crime Victim Impact Statement. Her description ofthe way the offense was committed, which was different than my understanding at the time that the plea was taken, and it was based upon all of that, that I reevaluated what this offer was and told, I guess it was Mr. Joseph at the time, that based upon that, I just could not keep my promise. But I can't point you to any specific word or sentence. It was just the totality of what I read in the PSI and especially in the Crime Victim's Impact Statement. After Appellant's counsel observed that, "the Crime Victim Impact Statement and the victim's letter to the Court didn't differ from infonnation previously provided to the Court, the County Court did not dispute this contention. 2Defendant-Appellant had been represented by Alan Joseph, Esq. (A-58). After County Court withdrew its plea agreement, Appellant retained his current pro bono counsel who appeared on November 29, 2006 (A-69) 6 A-72 to A-73. The Court continued to indicate that it could not elaborate as to the specific basis for changing its mind. County Comt indicated, "I'm trying to point you to some specific pa1t, but I don't know that I can do that." A-73. Appellant was allowed to withdraw his original plea. Curiously, despite the Court's adamance the 15 years would be the appropriate sentence, the Comt subsequently accepted a guilty plea to burglary in the first degree, in exchange for a prison sentence of 12 Y2 years. A-78. He was sentenced to that term on March 22, 2007. Appellant then timely filed a Notice of Appeal dated April 9, 2007, appealing his plea and sentence to the Appellate Division, Second Department on the ground that he had been coerced to withdraw his plea. A-78 to A-79; A-9.3 Appellant's appeal to the Appellate Division, Second Department was briefed and argued. See Briefs at A-82 and A-102. Among other things, Defendant-Appellant argued that his second plea bargain had been coerced based upon the Court's withdrawal of his first plea bargain without any grounds or justification, and that he should have been 3 Although retained in connection with the County Court proceedings, counsel has served on a "pro bono" basis in connection with all appellate proceedings, including the instant appeal. 7 sentenced to I 0 years based upon the original cap promised by County Court. A-85, et. seq. In a Decision & Order dated December I, 2009, the Second Department denied the appeal in its entirety. A-9. The Second Department's December I, 2009 Decision and Order affirmed Defendant-Appellant's plea and sentence without expressly addressing the circumstances of the reneged plea and sentencing agreement. On November 9, 2012, Defendant-Appellant filed a Writ of Error Coram Nobis with the Appellate Division, Second Department "seeking leave to file a late application for leave to appeal to the Court of Appeals from a decision and order of [the Second Department] dated December I, 2009, affirming a judgment of the County Court, Orange County, rendered March 22, 2007." A-8. Appellant's Petition for Writ of Error Coram Nobis is annexed at A- I 6, et. seq. In his Petition, Appellant alleged that his appellate counsel provided ineffective assistance of counsel by failing to timely pursue his application for leave to appeal to this Court arising out of the following factual allegations: a) that "Defendant-Appellant immediately and within 30 days after service of that Decision & Order dated December 1, 2009 with notice of entry 8 advised his attorney that he desired to pursue an appeal with the Court of Appeals and it was agreed that an application for leave to appeal to the Court of Appeals would be timely filed by that attorney at no additional cost to Defendant-Appellant" (A-23); b) that "it was not until approximately February 2012 that Defendant- Appellant learned that the time to file the foregoing application for leave to appeal or to file for an extension of time to appeal under C.P.L. §460.30 had expired without his attorney filing the requisite notices and/or applications" (A-23 to A-24); c) that "from in or about Feb1uary 2012, Defendant-Appellant's attorney represented to Defendant-Appellant that he still maintained a remedy in order to seek leave to appeal to the Court of Appeals and that the necessary motions and/or applications would be filed in order to do so and/or to obtain relief from the County Court's reneged plea/sentence agreement." (A-24); and d) that "(a]t all times relevant hereto, Defendant-Appellant intended to file an application for leave to appeal to this Court, including in or about December 2009, when he received a copy of the Second Department's Decision and Order dated December 1, 2009, and his failure to file an 9 application to this Court to date has resulted from the failures of his attorney and through no fault of his own." (!d.) In his Petition, Appellant alleged that the Second Department was permitted to consider his Petition for Writ of Error Coram Nobis for numerous reasons, including this Courts' precedent in Syville supra and Selikoff in.fra, inter alia (see discussion inji·a in Argument Points I and II). In a Decision and Order dated March 20, 2013, the Second Department denied Defendant-Appellant's Petition for Writ of Error Coram Nobis on procedural grounds, finding that "[c]ontrary to the defendant's contention, People v. Syville ( 15 NY3d 391) does not afford him the re1iefrequested." A-8. Appellant timely sought leave to appeal to this Court the Second Department's Decision and Order dated March 20, 2013. Defendant-Appellant also sought leave to appeal to this Court County Court's March 22, 2007 Order. In a Certificate Granting Leave dated July 15,2013, Associate Judge Susan Phillip Reed granted Defendant-Appellant leave to appeal to this Court the Second Department's March 20, 2013 Decision and Order denying his Writ ofEJTOr Coram Nobis. 10 ARGUMENT POINT I THE APPELLATE DIVISION ERRED BY FAILING TO CONSIDER THE SUBSTANTIVE MERITS TO APPELLANT'S PETITION FOR WRIT OF ERROR CORAM NOBIS C.P.L. §460.1 0 requires an application for a ceiiificate granting leave to appeal to the Court of Appeals to be made "[w]ithin 30 days after service upon appellant of a copy of the Order sought to be appealed." Since the Appellate Division, Second Department's Decision and Order dated December 1, 2009 deciding Appellant's initial appeal of right was served upon Appellant's attorney, with notice of entry, on December 23, 2009, the time for Defendant-Appellant to appeal that Decision and Order to this Court expired when a motion for permission to appeal was not filed on his behalf within thi1iy days thereafter, i.e. by January 22, 20 I 0 (or within thirty-five days thereafter after adding the additional 5 day period for mailing, pursuant to C.P.L.R. 21 03(b )(2)). See e.g. Simon v. Usher, 17 N.Y.3d 625 (20 II). C.P.L. §460.30(1) provides that, within one (1) year after the right to appeal has otherwise expired, a criminal defendant may move an "intermediate appellate court" to extend the time to "file a notice of appeal [or] an application for leave to appeal" for an additional thirty (30) days "upon the ground that the failure to so 11 file or make application in timely fashion resulted from (a) improper conduct of a public servant or improper conduct, death, or disability ofthe defendant's attomey, or (b) inability of the defendant and his ail:orney to have communicated, in person or by mail, conceming whether an appeal should be taken ... " The time for Defendant-Appellant to seek a 30 day extension of time to appeal pursuant to C.P.L. §460.30(1) expired when Defendant-Appellant failed to file a motion by January 22,2010. Although C.P.L. §460.30(1) expressly allows an extension of time to seek permission to appeal only if application is made within one year after those appellate rights have otherwise expired, this Court has recognized two exceptions which effectively extend the one year time limit, one of which is clearly relevant herein. In People v. Syville, 15 N.Y.3d 391 (20 1 0), this Court excused non- compliance witJl the C.P.L. §460.30 one year time limit by affording a criminal defendant an extension of time to appeal when an attorney's misconduct in failing to pursue appellate rights has been identified more than one year after the time to appeal has expired. In Syville, the defendant had timely directed his attorney to file a notice of appeal within 30 days after his judgment of conviction in November 2004. 12 However, the attorney failed to do so within 30 days thereafter or within the additional one year period accorded under C.P.L. §460.30. When defendant ultimately learned that his attorney had failed to timely file a notice of appeal and that relief was not available under C.P.L. §460.30 either, defendant moved in the Appellate Division, First Department by Writ of Error Coram Nobis for pe1mission to file a late notice of appeal, but that application was denied. After a Judge of this Court granted Syville permission to appeal the First Department's denial of his Writ ofEnor Coram Nobis, this Court found that defendant's timely request that his attorney tile a notice of appeal was sufficient and that he should not be punished by the Joss of his right to appeal because "he had reasonably relied on his counsel's advice concerning the proper time for filing a notice of appeal and the failure to timely pursue an appeal was entirely a product oflawyer error"- the same lawyer who had represented him during the entire proceeding. !d. at 395. In considering defendant's arguments, this Court in Syvi!le observed that "a defendant whose right to appeal is lost through his attorney's deficient performance should have a remedy." I d. at 398. 13 This Court noted that, at common law, the remedy afforded to defendants was a Writ of Error Coram Nobis which historically had allowed "a hearing in the trial court to determine whether the defendant had been reasonably induced to allow the time to take an appeal to expire by reason of an attorney's misrepresentation that defendant's appellate rights would be protected." !d. at 398, citing to People v. Callaway, 24 N.Y.2d 127 ( 1969) and to People v. Montgome1y, 24 N.Y.2d 130 (1969). In reversing the First Department, this Court in Syville held that C.P .L. §460.30 afforded a remedy where a defendant's right to appeal had been lost due to an attorney's error and remitted defendant's Writ of Error Coram Nobis to the Appellate Division for further proceedings finding as follows: Today, consistent with the due process mandate, we recognize the need for a second exception. Where an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant alleges that the omission could not reasonably have been discovered within the one-year period, the time limit imposed in CPL 460.30 should not categorically bar an appellate court fi·om considering that defendant's application to pursue an untimely appeal. Turning to the procedure to be used in invoking the exception, we conclude that the common-law writ of eJTor coram nobis affords the appropriate avenue for relief. Since the adoption of the CPL, we have acknowledged that the writ continues to be available to alleviate a constitutional wrong when a defendant has no other procedural recourse. !d. at 399-400. 14 The Appellate Division, Second Department found that "People v. Syville (15 N.Y.3d 391) does not afford him [Defendant-Appellant] the relief requested." It is submitted that the facts herein are sufficiently similar to Syville to wmTant otherwise. As in Syville, the Appellant timely directed his attorney to pursue his appellate rights. (A-23, ~29) As in Syville, Appellant's attorney failed to timely pursue those appellate rights or to timely seek the extension afforded by C.P.L. §460.30 within one year after those appellate rights had expired. (A-23 to A-24). As in Syville, Appellant could not have reasonably discovered that his appellate rights were not being protected. Appellant was incarcerated during the entire time that he believed his appellate rights were being protected (A-18, ~8; A- 24, ,131, e.g.) and, despite knowledge that a leave application had not been filed, Appellant justifiably believed that he would be able to pursue rights in Federal Court. Since Appellant was represented by the same attorney throughout the appellate process, as in Syville, Appellant did not have access to any other attorney - and he reasonably relied upon the advice, or absence of advice to the contrary from his attorney. 15 In light of the foregoing, Syville applies herein and the Appellate Division should have considered the merits to Defendant-Appellant's Writ of En-or Coram Nobis. POINT II THE APPELLATE DIVISION SHOULD HAVE CONSIDERED THE MERITS OF APPELLANT'S PETITION FOR WRIT OF CORAM NOBIS UNDER SYVTLLE OR AN EXTENSION TO SYVILLE a) Syville Applies Herein The N.Y. Legislature in enacting C.P.L. §460.30 established a statutory deadline applicable to both notices of appeal, which are filed as of right, and to applications to seek leave to appeal to this Court which may also be filed as of right. By its terms, C.P.L. §460.30 expressly applies to "a notice of appeal [or] an application for leave to appeal." It is well-established that the due process clause assures the fundamental right of! ega! counsel to all criminal defendants, since the right to counsel is "so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fomieenth Amendment." Gideon v. Wainwright, 372 U.S. 335, 340 (1963). The right to competent appellate counsel is fundamental to Constitutional due process. In People v. Bachert, 69 N.Y.2d 593, 596 (1987), this Court stated that, 16 "[t]he right to effective assistance of counsel on appeal is settled under both the Federal and State Constitutions," citing to Evitts v. Lucy, 469 U.S. 387 (1985). In Evitts, the U.S. Supreme Court held that a defendant's Constitutional due process rights and the right to (effective) assistance of counsel are violated when an appellate attorney ineffectively pursues an appeal of right. The right to effective assistance of counsel applies equally whether counsel is appointed orretained. Cuyler v. Sullivan, 446 U.S. 335 (1980). When an attorney's conduct results in a defendant losing the right to appeal, the deficient performance amounts to ineffective assistance of counsel. Evitts supra; Roe v. F/ores-Ortega, 528 U.S. 470 (2000). In fact, an attorney's failure to timely pursue an appeal or an application for leave to appeal which is sought by the defendant is not just ineffective assistance of counsel, but is tantamount to no assistance of counsel. See Evitts supra. In Perez v. Wainwright, 640 F.2d 596, 598 (1981), the United States Supreme Court stated," 'when a lawyer ... does not perform his promise to his client that an appeal will be taken, fairness requires that the deceived defendant be granted an out-of-time appeal.' " In this case, counsel on this appeal has acknowledged that he "omitted" an act which he had undertaken to do. This Court has addressed an untimely appeal 17 of right. In Evitts, the U.S. Supreme Court found that the Constitutional right to counsel is limited to a first appeal of right, and not to subsequent discretionary appeals (see also Ross v. Moffitt, 417 U.S. 600 (1974)). 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 (see Wainright v. Torna, 455 U.S. 586 (1982)). As an application for leave to this Court is a matter of right, and a necessary step to preserve Federal habeas relid; Syvi!le applies herein since, as in Evitts, Ross, and Moffitt, the delay by Appellant's attorney caused him to lose an appeal which he otherwise maintained as of right. Admittedly, the delay by Defendant-Appellant's attorney did not cause him to lose a right to appeal to this Court, since Defendant-Appellant only maintained a pennissive right to appeal to this Court, but it also forfeited his ability to seek habeas relief for failing to exhaust his state remedies. Under 28 U.S.C.S. §2254(a), Appellant was entitled, of right, to file with the "Supreme Court, a Justice thereof, a circuit judge, or a district court ... an application for a writ of habeas corpus ... on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States ... " 18 However, in order to exercise his right to appeal to the Federal Courts, Defendant-Appellant was required first to exhaust his remedies in the State Court system by pursuing an appeal to this Court. 28 U.S.C.S. §2254(b)( I) expressly indicates that a writ of habeas corpus "shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State ... " See also Baldwin v. Reese, 541 U.S. 27 (2003 ); Duncan v. Henry, 513 U.S. 364 (1995); Picard v. Connor, 404 u.s. 270 (1971 ). The purpose of the foregoing statute is to give "the State the 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Baldwin supra at 29, citing to Duncan supra at 365. In order to exhaust his remedies in State Court, Appellant was required to file an appeal with or to otherwise fairly present the issues to the highest state court, namely, this Court. See e.g. Baldwin supra. 4 Appellant was denied the opportunity to fairly present the issues herein to this Court and to file a writ of habeas corpus to the Federal Courts because of his attorney's failure to timely seek leave to appeal to this Court. 4Appellant counsel's belated understanding of the necessary steps to habeas relief are the root of the instant application. 19 In light of the foregoing, the ineffectiveness of Appellant's attorney has caused him to lose an appeal of right to the Federal Courts, and Syville applies therefor. b) Syville Should Apply Herein Under The Circumstances Of This Case Syvi!le should apply to the circumstances of this case based upon considerations of public policy and fundamental fairness. As this Court stated in Syvi!!e, "a defendant whose right to appeal is lost through his attorney's deficient performance should have a remedy." !d. at 398. In his dissent in Torn a supra at 588-9 ( 1982), Justice Thurgood Marshall addressed a "constitutional right to counsel to pursue discretionary state appeals" Justice Marshall argued in Torna, a defendant should not be punished by denial of his rights, including his right to seek a discretionary appeal or further appeals of right, due to the ineffective assistance of an attorney. Justice Marshall observed that Courts not be required to grant the application, but merely consider the application. The prejudice to a defendant in refusing to consider applications for leave to file (late) discretionary appeals could be potentially significant indeed, while the prejudice to the State in defending such applications would be de minimis. Applying Syville to the circumstances presented in this case would not 20 encourage defendants or their attorneys to delay filing their permissive leave applications. A defendant would realize no benefit to delaying pursuit of a permissive appeal, since he would derive no greater likelihood of success in pursuing his permissive appeal. No defendant or defendant's attorney would intentionally expose a defendant to the risk of losing an appellate right which could have been preserved merely by filing a timely leave application. Denial of the opportunity to seek leave of this Court to a deserving defendant would far outweigh the burden of hearing a meritorious application. The ramifications of failing to apply Syville in a manner which preserves discretionary appeals, as well as appeals of right, is potentially chilling - particularly to deserving criminal defendants whose fundamental and/or Constitutional rights have been violated. In light of the foregoing, Syville excuses or should read to excuse the failure of Appellant's lilttomey to timely seek leave to appeal or an extension oftime to seek leave to aP.peal to this Court under the circumstances herein and the within Writ of Error Coram Nobis should be remanded to the Appellate Division for consideration of the substantive merits. 21 POINT III THE ISSUE TO BE RAISED ON APPEAL IS MERITORIOUS SINCE APPELLANT'S RIGHTS WERE VIOLATED WHEN COUNTY COURT COERCED HIM TO WITHDRAW HIS PLEA WITHOUT IDENTIFYING GROUNDS CAPABLE OF REVIEW ON APPEAL Under the circumstances of this case, County Court was not entitled to arbitrarily threaten an enhanced sentence of 15 years when County Court promised a sentencing cap of not more than 10 years under the plea agreement. In People v. Seaberg, 74 N.Y.2d 1, 6 (1989), this Court discussed the well- established policy considerations underlying plea bargaining. See also People v. Hidalgo, 91 N.Y.2d 733 (1998). A sentencing court has an obligation not to tamper with a defendant's reasonable expectation of receiving the sentence which has been promised in exchange for his plea. People v. Selikojf, 35 N.Y.2d 227 ( 1974) cert.den. 4 I 9 U.S. I 122 (1975). In this case, defendant-appellant entered a plea with a promised sentence not to exceed l 0 years. Although a sentencing court has discretion to impose an appropriate sentence, where the defendant has complied with the conditions attached to a plea in detrimental reliance thereon, the court may not withdraw that plea without sufficient grounds which are reflected on the record. In People v. Danny G., 61 N.Y.2d 169 (1984), this Court found that specific 22 performance of a plea is warranted where, as here, the defendant has detrimentally relied upon the plea and where, as here, the grounds cited by the sentencing court for withdrawing the promised sentence either are undisclosed or de minimis. Here, as in Danny G., Appellant satisfied the conditions attached by the Court to its promised sentence. In reliance upon the promised I 0 year sentence, it is undisputed that Defendant-Appellant returned to Cou1i, cooperated with the Department of Probation, and stayed free from further arrest. A-59 to A-61. As this CoUJi stated in People v. McConnell, 49 N.Y.2d 340, 349 (I 980), "A promise made by a State official authorized to do so and acted upon by a defendant in a criminal matter to his detriment is not lightly to be disregarded. Of importance also is the detrimental effect on the criminal justice system that will result should it come to be believed that the State can renege on its plea bargains with impunity notwithstanding defendant's performance." In Spence v. Superintendent, 219 F.3d 162, 167 (2d Cir. 2000), the Second Circuit Court of Appeals observed, "a judge enhancing a defendant's sentence ... , without a showing that defendant breached the terms of the plea agreement, has acted contrary to the basic tenets of due process." In addition, a plea violates fundamental Constitutional rights unless it is entered knowingly and voluntarily. People v. Hill, 9 N.Y.3d 189 (2007). See also 23 North Carolina v. A(ford, 400 U.S. 25 (1970); People v. Brown, 14 N.Y.3d 113 (20 I 0). However, by arbitrarily withdrawing the promised I 0 year sentence which was offered and accepted and by requiring acceptance of a 15 year sentence instead, the trial court effectively coerced defendant into withdrawing his plea. The subsequent acceptance of the same plea conditioned upon a 12 Y2 year sentence is evidence of the coercive nature of the process which induced Appellant to withdraw his original plea. The arbitrariness and unfairness of the sentencing court in acceptance of a substitute plea agreement containing a 12 112 year sentence based upon the same facts and circumstances is unexplained. The sentencing comt expressly conditioned the plea upon a 15 year sentence instead of the original promised I 0 year sentence based upon the pre-sentence rep01t despite conceding that it could not point to anything specific in the pre- sentence repmt as justification for refusing to impose the promised sentence. A- 73. It is undisputed that the pre-sentence report contained nothing which had not been known to the sentencing court when it had promised the original 10 year sentence. County CoUJt did not dispute the statement from Defendant-Appellant's 24 attorney that, "having had an opportunity to review the Crime Victim Impact Statement and the victim's letter to the Court, I don't believe those shed any new light..." A-72 to A-73. After obtaining the withdrawal ofthe plea, the trial court only weeks later, and without explanation, offered a 12 '12 year sentence. The trial court's conduct in first agreeing to a 10 yeai· cap and thereafter requiring defendant-appellant to withdraw his plea or accept a 15 year sentence before finally agreeing to a new plea with a 12 '12 year sentence is evidence of the arbitrary manner in which the County Court dealt with and reneged upon its promises to the defendant. As this Court has previously stated, "[w]here a comi cannot or will not impose the sentence previously promised it should specify on the record the information contained in the pre-sentence report or any other circumstance relied upon for its changed view [citation omitted] [thus, arbitrariness or trifling with the legitimate expectations of pleading defendants may be avoided and the matter will be subject to appellate review." Selikoffsupra at 240. This Comi also held that the reasons for departing from a promised sentence must be specified on the record to assure that the trial comi has not "trifled with the legitimate expectations of the defendant based on the plea." People v. Murray, 15 N.Y.3d 725, 726 (20 I 0). See also Danny G. supra. 25 County Court, as the sentencing Court herein, refused to impose the original promised sentence of 10 years or less and threatened to impose a far greater sentence than it had promised under a plea agreement without identifying any aiiiculable ground for doing so, much less investigating the reliability or accuracy of that ground, and notwithstanding that Appellant had complied fully with all the conditions for the plea. In People v. McConnell, supra, the sentencing Court claimed that the pre- sentence report was not what it had expected and disclosed for the first time that "defendant had used a knife in addition to beating, punching or kicking the victim,". This Court found that "the infonnation coming to the court's attention after the plea was approved ... was []too insignificant to warrant refusal to honor the bargain that defendant had fully performed." Danny G. supra at 175. In this case, after inducing Appellant to admit his guilt with the promise of a sentence capped at I 0 years, County Court then abruptly and arbitrarily changed its position and thereby placed Appellant in the precarious position of having to decide whether to withdraw his plea despite his admission of guilt on the record or to accept a subsequent plea agreement with a sentence 50 % longer than originally promised. 26 Were sentencing Courts permitted to vary promised sentences in connection with accepted pleas on such arbitrary and willy-nilly grounds, then pleas would become traps for unwary defendants and the plea bargain system would become a roulette wheel. In light of the foregoing, it is submitted that County Court abused its discretion and that Defendant-Appellant was unfairly, improperly, and unconstitutionally compelled to withdraw his original guilty plea with a promised 10 year sentence accepted. 27 CONCLUSION Acceptance of responsibility for failures during the representation of a client is a very humbling matter. This counsel's failure to preserve both the State and Federal rights of the Appellant were sufficient grounds for grant of the Coram Nobis relief sought below. The Appellate Division's March 20, 2013 Decision and Order denying Defendant-Appellant's Writ ofE!Tor Coram Nobis should be reversed and granted or remanded to the Appellate Division for consideration on the merits, and/or leave must be granted to this Court to appeal the Appellate Division's December 1, 2009 Decision and Order. Dated: Chester, New York September 12, 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, <::: r~'-v~ Benjamin Ostrer 28