The People, Respondent,v.Richard Perales, Appellant.

Brief

N.Y.September 10, 2014

April 8, 2014 The Judges of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. Richard Perales Queens County Indictment No. 2077/05 Submission Pursuant to Rule 500.11 May It Please the Court: The People submit this letter in reference to the Clerk of the Court’s letter advising of the consideration of sua sponte examination of the merits pursuant to Section 500.11 of this Court’s Rules of Practice. In urging the Court to affirm the Appellate Division order which denied defendant’s motion for a writ of error coram nobis, the People do not object to the application of the section 500.11 procedure, but stand ready for full briefing and oral argument should the Court find, upon review of this submission and that filed on behalf of the defendant, that it is necessary to reconsider whether sua sponte examination of the merits is appropriate in this case. The November 28, 2012 denial of coram nobis relief that defendant challenges was based on the failure of his attorney to file a Notice of Appeal from defendant’s conviction by plea of guilty to Attempted Burglary in the Second Degree. Defendant entered that plea on April 26, 2007 during jury selection for his trial on an indictment which charged him with, among other things, both Robbery in the First Degree and Burglary in the First Degree. In pleading guilty, defendant admitted that he and a co-defendant disguised themselves as Con Edison employees to gain access to an apartment where they robbed a man at gunpoint before beating him with the gun. Had he been convicted after trial of the top counts in the indictment, the defendant would have been subject to a minimum sentence, as a persistent violent felony offender, of from twenty years to life imprisonment and a maximum of up to twenty-five People v. Perales January 20, 2014 Page 2 years to life imprisonment, P.L. §§ 60.05(6), 70.08. Instead, as the minutes show, the court accepted defendant’s plea “with the understanding that he will be sentenced to a period of incarceration; the minimum being 15 years, the maximum being life” (Plea Minutes: 3, 10) and, on June 15, 2007, he was so sentenced. During the proceedings prior to its acceptance of defendant’s guilty plea, the court asked defendant, in the presence of his attorney, whether he understood that he was “waiving his right to appeal” of his “own free will,” which, the Court explained, meant that the defendant would “be foreclosed forever from complaining of any errors that may have occurred from the date of the crime involved through sentence” (Plea Minutes: 12). Defendant also executed a written Waiver of Right to Appeal and Other Rights, expressly entered into “in consideration of and as part of the plea agreement being entered into,” on which defendant agreed to “waive my right to file motions to vacate my conviction and to set aside my sentence under C.P.L. Article 440 and any right I may have to file any other motion or application attacking my conviction in state or federal court.” Despite that agreement, by papers dated October 6, 2008, defendant, pro se, sought permission to file a late Notice of Appeal from his conviction. In opposing defendant’s motion, the People mentioned that defendant and his attorney had executed a waiver of appeal in court at the time defendant entered his guilty plea articulating defendant’s waiver of his right to appeal his judgment of conviction or sentence. By order dated November 18, 2008, the Appellate Division denied defendant’s motion. The motion filed below for coram nobis sought roughly the same relief, alleging that defendant’s trial attorney provided defendant with constitutionally ineffective assistance in failing to timely file a Notice of Appeal, despite defendant’s express waiver of that right. He argued below, as now, that he is entitled to the writ under authority of People v Syville, 15 N.Y.3d 391 (2010) because when he “discovered that no notice of appeal had been filed, [the Appellate Division] denied an application to file a late notice of appeal because the one-year period of C.P.L. 460.30 had expired” (Defendant’s Affidavit In Support of Petition for Writ of Error Coram Nobis, ¶ 15). Though, indeed, Syville holds that “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 C.P.L. § 460.30 should not categorically bar an appellate court from considering that defendant’s application to pursue an untimely appeal,” there is nothing on the face of the Appellate Division orders here, either denying defendant’s motion to file a late Notice of Appeal or that denying coram nobis, that suggests Syville was ignored. Instead, there can be but little question that since defendant had waived his right to appeal, he was not entitled to file a late notice so as to permit precisely what he had waived. People v. Perales January 20, 2014 Page 3 This Court has recognized, at least since People v. Seaberg, 74 N.Y.2d 1, 10 (1989), “that the public interest concerns underlying plea bargains generally are served by enforcing waivers of the right to appeal.” As the Court held then, both negotiated dispositions, and the waiver of the right to appeal not only permits the “substantial conservation of prosecutorial and judicial resources, it provides a means where, by mutual concessions, the parties may obtain a prompt resolution of criminal proceedings with all the benefits that enure from final disposition. The plea bargain, or negotiated sentence, enables the parties to avoid the delay and uncertainties of trial and appeal and permits swift and certain punishment of law violators with sentences tailored to the circumstances of the case at hand.” Id. at 7. Since then, the Court has repeatedly held defendants to their agreement to waive the right of appeal as an integrated part of a negotiated disposition, just as with any other condition to which defendant agrees in order to obtain an otherwise favorable sentence. See People v. Hidalgo, 91 N.Y.3d 733, 735 (1998) (“a defendant may waive the right to appeal as part of a plea bargain”; emphasis added); People v. Muniz, 91 N.Y.2d 570 , 573 (1998) (“a criminal defendant’s waiver of his right to appeal, obtained as a condition of a sentence or plea bargain . . .”); People v. Callahan, 80 N.Y.2d 273, 280 (1992) (“a defendant may ordinarily waive the right to appeal as part of a sentence or plea bargain”); People v. Allen, 82 N.Y.2d 761 (1993). As with other plea conditions – avoiding arrest prior to sentence, or completing a particular drug program in order to obtain a favorable sentence – the defendant gives up this right in exchange for the favorable sentence agreement. People v. Lopez, 6 N.Y.3d 248, 255 (2006); People v. Avery, 85 N.Y.2d 503 (1995); People v. Outley, 80 N.Y.2d 702 (1993). Despite giving up that right, defendant has bombarded state and federal courts with a variety of motions virtually since the moment he stopped jury selection to accept the attractive plea offer. His claim, repeatedly rejected (though his appeal from the denial of a motion to vacate the conviction or the sentence is currently pending before the Appellate Division), was first, that he understood that he was receiving a determinate sentence of twelve years, rather than an indeterminate sentence of fifteen years to life (Sentencing Minutes: 3). The basis of that contention appears to be defendant’s belief that he had been promised the minimum sentence which may be imposed on a defendant convicted of attempted burglary in the second degree (Defendant’s Affidavit In Support of Motion to Vacate, ¶ 6), which would have been, in fact, an indeterminate term of from twelve years to life, P.L. §§60.05(6), 70.08, as applicable to a 2006 crime. The record of the proceedings in the trial court contradict defendant’s claims. They show both his attorney setting forth “the understanding that he will be sentenced to a period of incarceration; the minimum being 15 years, the maximum being life” (Plea Minutes: 3) and the court asking defendant whether he “underst[ood] that there is a conditional promise made to you, that upon your plea of guilty your sentence will be 15 to life” to which the defendant answered “yes, ma’am” (Plea Minutes: 10) before again asking the same question and receiving the same answer a second People v. Perales January 20, 2014 Page 4 time (Plea Minutes: 11). Moreover, to the extent defendant complains that he was under a mis-impression that he would serve only 10 months out of each year of his sentence and receive two months credit, similar to the one-seventh that a defendant might receive off of a determinate sentence, Corrections Law § 803(1)(c), defendant’s claim is belied by the record. Here again, the record is clear that the court promised defendant an indeterminate sentence, and that the minimum term of that sentence was 15 years. Thus, defendant’s contention that the court promised defendant something different from what he received is unavailing. Furthermore, if defendant wished to raise a claim that counsel had given him bad advice in this regard, the appropriate vehicle to raise that claim was a motion pursuant to section 440.10 of the C.P.L. rather than an appeal. As this Court had held, in almost all instances, a claim of ineffective counsel is best addressed in a motion pursuant to 440.10, since it involves off-the- record discussions between counsel and client that can only be explored by referring to matters that cannot be reviewed on direct appeal. People v. Love, 57 N.Y.2d 998, 1000 (1982), People v. Brown, 28 N.Y.2d 282, 286 (1971). In the federal system, ineffective counsel claims must be raised on collateral review for this very reason, Massaro v. United States, 538 U.S. 500,504-505 (2003) (“When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose”) and this Court has strongly encouraged, and in most cases required, defendants to use the corresponding state procedure, a 440.10 motion, to raise an ineffectiveness claim. See, e.g., People v. Peque, N.Y.3d , 2013 N.Y. LEXIS 3182 (Nos. 163, 164, 165, Nov. 19, 2013);People v. Denny, 95 N.Y.2d 921, 923 (2000); People v. Love, 57 N.Y.2d at 1000 (“we cannot conclude that defendant's counsel was ineffective simply by reviewing the trial record without the benefit of additional background facts that might have been developed had an appropriate after-judgment motion been made pursuant to CPL 440.10,” internal quotation marks omitted). Indeed, even where some of the discussion between attorney and client may be reflected on the record, the full extent of those discussions can only be explored by making off the record allegations and, if necessary, resolving those allegations at a hearing. An appeal does not, of course provide this option. Here, had defendant opted to proceed on the plea minutes only, he would have had a difficult argument at best. This is because, as noted above, the plea court was quite clear as to the sentence, and defendant would have a difficult time establishing that he ultimately misunderstood that sentence or that he would not have pleaded guilty if the attorney had acted otherwise. In order to establish what precisely counsel told his client and how important that information was to him, defendant would have to resort to off-the-record discussions at which the issue arose. And this is true even though counsel made a statement at one point on the record regarding the service of 10 months out of every year (Plea Minutes: 7). That cryptic statement did not explain what defendant’s People v. Perales January 20, 2014 Page 5 precise understanding was, what counsel had imparted on that score, or whether defendant would have pleaded guilty without that information. Because that statement could have been placed in an entirely different context by a description of the attorneys discussions with defendant in this regard, an appeal was not the appropriate vehicle. Thus, even assuming counsel was certain that defendant wanted to pursue this claim, he would not have been required to file a Notice of Appeal. He had instead the option of a 440.10 motion, and that was, in fact, the best vehicle for the defendant to raise this claim. Ultimately, of course, defendant did bring a 440.10 motion and was unable to establish that even after the plea court’s explicit statements as to the sentence defendant was to receive, defendant was nevertheless under a mistaken impression. Supreme Court denied defendant’s motion to vacate on procedural grounds, but held that even were it “to review the merits of defendant’s claim” it would fail because “ [t]he plea record clearly establishes that the promise made to defendant upon his plea of guilty to the crime of Attempted Burglary in the Second Degree was that his sentence would be fifteen years to life. In fact defendant was asked, more than once, if he understood that his sentence would be an indeterminate sentence of fifteen years to life and he unequivocally answered that he did.” People v. Perales, (Ind. 2077/05, Sup. Ct. Queens Co. February 28, 2012) at 3. Moreover, as Supreme Court found, “defendant's claim of ineffective assistance of counsel is refuted by the substantially advantageous plea agreement his attorney negotiated on defendant's behalf” making it impossible for defendant to allege, as he would have to in order to succeed based on ineffectiveness, that there was “a reasonable probability that he . . . would not have pleaded guilty and would have gone to trial instead.” People v. Peque, N.Y.3d at , slip op at 20. In any event, defendant’s application for leave to appeal to the Second Department f rom the den ia l o f h i s mo t ion was gran t ed , People v . Perales , http://www.nycourts.gov/reporter/motions/2013/2013_64045.htm (2d Dept. February 7, 2013) (Miller, J.), though it has not yet been perfected. Thus, 440.10 as a procedural vehicle has not yet1 been exhausted. Under these circumstances, where the record establishes that defendant pled guilty and waived his right to appeal knowingly, intelligently and voluntarily, and the sole claim that This is not to say that defendant’s motion to vacate has merit. Indeed, the papers defendant1 filed in support added nothing to the record which, defendant said, included a “promise” to him because the court “verified” his attorney’s comments when it asked whether defendant “was satisfied with [his] attorney’s explanation” (Defendant’s Notice of Motion to Vacate) and “the People neither interjected or disagreed with the explanation” (Def’s Aff In Support of Motion to Vacate, ¶ 38). The record does not support defendant’s interpertation of the proceedings, however, and, in fact, contradicts it, in the portions where the court specifically advised defendant of the terms of the sentence it would impose (Plea Minutes: 3, 10). People v. Perales January 20, 2014 Page 6 defendant might have wished to raise was properly advanced in a 440.10 motion, the failure of his attorney to file a Notice of Appeal, and the denial of defendant’s motion to file a Notice of Appeal, coram nobis would not only serve no purpose, it would seriously undermine “the State's legitimate interest in finality.” Seaberg, 74 N.Y.2d at 10; see also Lopez, 6 N.Y.3d at 261. The due process rights a defendant has with respect to the taking of an appeal, see generally Roe v. Flores-Ortega, 528 U.S. 470 (2000) “compels states to make certain that criminal defendants receive the careful advocacy needed ‘to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over.’” People v. West, 100 N.Y.2d 23, 28 ( 2003), quoting from Penson v. Ohio, 488 U.S. 75, 85 (1988); see also People v. O'Bryan, 26 N.Y.2d 95 (1970); People v Montgomery, 24 N.Y.2d 130 (1969). Here, those claims, although ultimately unavailing, were considered through a different procedural vehicle. The use of coram nobis to give the defendant a remedy that he previously waived and that was not required in order to present the only claim he wished to raise would be exorbitant, and contrary to the role this Court has reserved for that remedy, one founded on necessity. Indeed, this Court’s initial use of coram nobis to permit defendants who were not informed of the right to appeal an additional period in which to file a Notice of Appeal, extended to situations in which counsel assured defendant that a Notice of Appeal would be filed, People v. Calloway, 24 N.Y.2d 127 (1969), or where counsel, although informing defendant of his right to appeal, refused to file one with the court, People v. O’Bryan, 26 N.Y.2d 95 (1970), was no longer necessary after the enactment of section 460.30 of the Criminal Procedure Law. As this Court expressly held in People v. Thomas, 47 N.Y.2d 37, 42 (1979), section 460.30 “‘plainly and precisely deals with and encompasses the relief’ provided in People v. Montgomery (24 NY2d 130),” and thus coram nobis was then unnecessary. Similarly, this Court held in People v. Corso, 40 N.Y.2d 578, 580 (1976), “applications seeking Montgomery relief are encompassed by C.P.L. § 460.30 and should be brought in the manner prescribed in that section.” Since that time, this Court has invoked coram nobis only in rare situations, and then when absolutely necessary. Resort to coram nobis “to fill yet another interstice of the law and human experience” People v. Bachert, 69 N.Y.2d 593, 599 (1987), was extraordinary rather than being routine. See also People v. Bachert, 69 N.Y.2d at 593, 596 (defendant seeking to raise a claim of ineffective appellate counsel could bring a coram nobis petition in the Appellate Division because of “the absence of a codified form of relief”). Here, the use of coram nobis would provide defendant a remedy that he had both previously waived and that was unnecessary to present the only claim he wished to raise. Providing coram nobis would allow the defendant more than he was entitled to, since he had waived that relief, and more than he needed, since he could raise his claim in a 440. 10 motion. Because defendant had waived his right to appeal and, in any event, cannot show he was prejudiced in any manner from the failure of his attorney to file a Notice of Appeal, the People v. Perales January 20, 2014 Page 7 Appellate Division’s order denying defendant the writ should be affirmed. Respectfully submitted, Edward D. Saslaw Assistant District Attorney (718) 286-5803 cc: Richard Perales #07-A-3838 Green Haven Correctional Facility Post Office Box 4000 Stormville, New York.12582