The People, Respondent,v.Mario Arjune, Appellant.

Brief

N.Y.October 12, 2017

To be argued kJ JENIN YOUNES (20 minutes) Court of Appeals STATE OFNEWYORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - agai11st- MARIO ARJUNE, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT- APPELLANT February 21, 2017 LYNNW.L. FAHEY JENIN YOUNES Attorneys for Defendant-Appellant 11 1 John Street, 11th Floo.r New York, N.Y. 10038 (212) 693-0085 APL-2016-00153 Index TABLE OF AUTHORITIES ........................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... I ARGUMENT ......................................................................................................................................... 2 APPELLANT'S ATTORNEY DID NOT ADEQUATELY INFORM HIM OF HIS APPELLATE RIGHTS OR HOW TO A VOID LOSING THEM, AND APPELLANT WAS PREJUDICED BECAUSE HIS ATTORNEY'S FAILURE TO DISCUSS THE APPEAL OR TAKE ANY ACTION AT ALL WHEN SERVED WITH THE DISMISSAL MOTION RESULTED IN FORFEITURE OF THE APPEAL. CONCLUSION ................................................................................................................................... IO TABLE OF AUTHORITIES CASES People v. Perez, 23 N.Y.3d 89 (2014) ............................................................ 7 People v. West, 100 N.Y.2d 23 (2003) ........................................ 2, 4, 5, 6-7, 8 Roe v. Flores-Ortega, 529 U.S. 470 (2000) ................................................... 3 11 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MARIO ARJUNE, Defendant-Appellant. PRELIMINARY STATEMENT This brief is submitted in reply to the Brief for Respondent. Appellant's time to reply has been extended to February 24, 2017. 1 ARGUMENT APPELLANT'S ATTORNEY DID NOT ADEQUATELY INFORM IDM OF IDS APPELLATE RIGHTS OR HOW TO AVOID LOSING THEM, AND APPELLANT WAS PREJUDICED BECAUSE IDS ATTORNEY'S FAILURE TO DISCUSS THE APPEAL OR TAKE ANY ACTION AT ALL WHEN SERVED WITH THE DISMISSAL MOTION RESULTED IN FORFEITURE OF THE APPEAL. Appellant argues that his trial attorney was ineffective in failing to protect appellant's fundamental right to first-tier appellate review of his felony conviction after trial when he neglected either to (1) explain appellant's right to poor person relief and how to obtain it, or (2) take any action whatsoever when served with the People's motion to dismiss appellant's appeal (see App. Br. at 12-30). In response, the People speculate that defense counsel discussed appellant's right to appeal with him and argue that, even if he did not, appellant failed to demonstrate prejudice. They cite People v. West, 100 N.Y.3d 23 (2003), and argue that appellant likely received sufficient written instructions. Finally, they assert that counsel had no obligation to contend with the People's motion to dismiss in any way (see Resp. Br. at 13-31). The People are wrong on all counts. The People claim that defense counsel "must have" told appellant "something about his appellate rights" because counsel would not have filed a notice of appeal without such a discussion (Resp. Br. at 16). But it is a common 2 practice for defense attorneys to routinely file a notice of appeal after a trial conviction. Indeed, the notice does not require the defendant's signature or any other proof that he reviewed it or discussed the appeal with his attorney. Moreover, under Roe v. Flares-Ortega, 528 U.S. 470, 480 (2000), counsel is required to file a notice of appeal whenever he believes a rational defendant would want to appeal; that duty is not triggered only by a discussion with the client. That the notice of appeal was filed, then, does not establish that counsel spoke to appellant about appealing at all, much less that he adequately advised his client about the follow-up needed to avoid inadvertent forfeiture of his right to appeal. Nor did defense counsel's declaration that it was "understood" he was trial and not appellate counsel (A. 61) establish that the critical discussion occurred. It does not follow from this statement that defense counsel informed appellant about his right to seek poor person relief or gave appellant any information about how to do so. Instead, counsel's statement suggested that, because he was paid only for trial representation, he believed he had no further obligation and was free to abandon appellant after filing a notice of appeal and leave him to fend for himself - precisely as appellant claims he did. In short, the People's claims are speculative, but to the extent the record contains evidence on the subject, it undermines their contention. 3 The People advance the baseless proposition that, even assuming counsel's performance was deficient, appellant was not prejudiced because the court might not have granted him poor person relief (see Resp. Br. at 20-22). Appellant was a construction worker from an immigrant family, about to serve a state prison sentence. Furthermore, this Court has granted him poor person relief. Obviously, since he remained entitled to such relief several years after his release, he would have qualified for assigned appellate counsel while he was still in prison. Arguing that requesting poor person relief on one's own is not burdensome since "thousands of defendants" do it, the People claim that appellant was not entitled to legal representation for filing the application (Resp. Br. at 23, 26). But that misrepresents appellant's argument. He contends only that defense counsel could not entirely relinquish responsibility for the case after filing the notice of appeal, but had to provide some further advice to his cognitively limited and barely literate client, as every pertinent standard requires (see App. Br. at 18-21 ). Furthermore, appellant's cognitive and literacy limitations (see App. Br. at 25-27) distinguished him from "thousands of' typical defendants, and in particular from the defendant in West, 100 N.Y.2d 23, which the People cite repeatedly. West was an experienced litigant: a persistent felony offender who had filed numerous prose motions in the past. By contrast, this case constituted appellant's first and 4 only contact with the criminal justice system, and he was particularly ill-equipped to know how to proceed absent some advice from his attorney. Another decisive factor in West was that the defendant had been provided "clear instructions on how to apply for poor person relief and ample notice of his right to appeal." !d. at 28. Those instructions stated, inter alia: If you are without funds, after the notice of appeal has been filed, you must write to the Appellate Division requesting that counsel be assigned to you for the purpose of appeal. Send this letter to the Appellate Division, First Department, 27 Madison Avenue, New York, New York 10010. You should request that you be granted permission to appeal upon the original record. You should mention that you are without funds with which to retain counsel or to purchase a transcript of the proceedings. State fully your financial circumstances, explaining why you cannot afford to hire an attorney for an appeal or purchase a transcript of the proceedings. You must write this letter yourself. 1 There is no evidence that appellant received anything remotely resembling such "clear instructions." First, the record contains no evidence of what written information appellant was given about his appeal. The People attach what they say is a standard "Notice of Appeal" to their appendix (RA-1 ), but it was not part of the record in the court below. It cannot be presumed that this was the form that the 1 This form, obtained from West's appellate counsel, is from page 54 of the respondent's appendix in West. It is attached for the Court's convenience as a one-page Addendum. 5 clerk stated he was handing appellant (A. 45) without evidence to support that claim. In any event, that form does not contain the kind of "clear instructions on how to apply for poor person relief' that West received. Cf West, 100 N.Y.3d at 28. It did not spell out the precise steps an indigent defendant must take, including a written request to the Appellate Division after the notice of appeal is filed. Nor did it explain what a defendant must articulate in his letter, including that he lacks funds, his financial circumstances, and why he cannot afford to hire an attorney. And it did not inform appellant that the letter must come from him or otherwise ensure that he was not under the misimpression that his attorney would take care of it. Moreover, the cursory written notice the People claim was likely given to appellant was especially insufficient to convey his appellate rights to a cognitively limited and barely literate individual. As appellant's psychiatric evaluation, his appellate and immigration attorneys, and his own statement about his literacy (see A. 33-39, A. 64-65, A. 67-69, A. 91-92) all attest, in practical terms, he could not have understood the meaning of the notice absent simplified, verbal instructions from counsel. Nor did the form relieve counsel of his duty to provide tailored, concrete advice and information about appellant's right to appeal, as well as how to protect and effectuate that right. See West, 100 N.Y.3d at 28 ("when a State grants 6 a defendant a statutory right of appeal, due process compels States to make certain that criminal defendants receive the careful advocacy needed to ensure that rights are not foregone and that substantial legal and factual arguments are not inadvertently passed over") (emphasis added). For similar reasons, appellant's case is significantly different from People v. Perez, 23 N.Y.3d 89, 100 (2014) (see Resp. Br. at 14, 16). Two of the three defendants in Perez had "clear notice of how to obtain a lawyer at state expense," as in West. The third defendant, Perez himself, retained appellate counsel who failed to perfect the appeal, but Perez took no action for 16 years. Since Perez had initially procured a lawyer to represent him on appeal, he obviously had a clear understanding of his right to appeal and to an attorney at that stage of the proceedings. And there was no contention that any of the defendants in Perez suffered cognitive or literacy deficiencies. The People further argue that appellant's appeal might have languished because, having been acquitted of the top counts and received a short sentence, he had no interest in pursuing it (Resp. Br. at 22). Surely, defense attorneys are aware that there are many reasons to appeal a trial conviction of a felony (see App. Br. at 26-28). Given the deleterious effects of a felony conviction on an individual's life, separate and apart from incarceration, along with the lack of risk in appealing a trial conviction, any rational person would wish to do so. See 7 Flares-Ortega, 528 U.S. at 580. Thus, if the importance of an appeal was lost on appellant, defense counsel had an obligation to explain the significant reasons to pursue it. Concededly, no case explicitly holds that appellant was "entitled to counsel to protect his right to ·appeal and to ensure that it is perfected after the notice of appeal is filed" (see Resp. Br. at 23-26). But the Sixth Amendment right to the effective assistance of counsel has long recognized a defendant's right to an attorney who satisfies the established norms of professional conduct. And the Second Department rules, along with those of the other three Departments and the New York State Bar Association, National Legal Aid and Defender Association, and American Bar Association, all acknowledge the obligation of trial counsel to protect his or her client's appellate rights. The existence of such directives mandating that counsel assist in procuring poor person relief and otherwise take reasonable steps to ensure an appeal is not unwittingly forfeited establishes that, in New York, an attorney's performance is substandard if counsel fails to do so (see App. Br. at 18-21). Appellant's case provides a prime example of the harm done to criminal defendants - particularly ones as vulnerable as appellant - if these norms are ignored. See West, 100 N.Y.3d at 28 ("a State's processes must provide the criminal appellant with the minimal safeguards necessary to make an adequate and effective appeal"). 8 Finally, the People argue that counsel's failure to take any action whatsoever when he received notice of the People's motion to dismiss did not constitute per se ineffectiveness because (I) he did not recall receiving the motion, so perhaps he never did; and (2) he had no obligation to respond to any such motion (see Resp. Br. at 29-30). But proof of service on defense counsel was attached to appellant's coram nobis petition; accordingly, the People's argument that defense counsel might not have known about the motion is unavailing. If, in fact, he threw it away or ignored it, his representation was deficient. Nor is appellant arguing that counsel was required to "blindly oppose" (Resp. Br. at 30) the motion. He had a duty, however, once notified that the appeal was facing dismissal, to take some action to protect appellant from its inadvertent loss. A brief phone call to appellant might have sufficed. But doing nothing was not justifiable. In sum, we urge the Court to find defense counsel's failures constituted ineffectiveness under the State and Federal constitutions. 9 CONCLUSION FOR THE FOREGOING REASONS AND THOSE STATED IN APPELLANT'S MAIN BRIEF, THE DENIAL OF APPELLANT'S CORAM NOBIS PETITION SHOULD BE REVERSED, AND APPELLANT'S CASE SHOULD BE REMITTED TO THE APPELLATE DIVISION FOR REINSTATEMENT OF HIS DIRECT APPEAL. Dated: February 21, 2017 New York, New York Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Appellant Appellate Advocates Ill John Street, 9th Floor ew York, New York 10038 . 12) 693-0085 10 ADDENDUM ~· 'ro 'nlE DEFENDANT: RA:95 NOTICE OF RIGHT ro .APPEAL., .'(a~..-;:'~· - YOG ha•e & rirht to appeal a conYidlon &lid/or autace; u4 you h&q a riJIU to appeal tile nfuaal ot 1M Court to lftllt a writ of Babeaa Colll'llt or a Judplct dftyiaf a write of lbbeaa Corpua. In ordu to eun:lae thle rilht. you 111111t Ale & Noeket Number- ·---------~te"''----.-.----, ..... "" .. ·· . ---- ~-~ ~~- ~ ---~~-----~--------~---M----------• H 54 STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK ) JENIN YOUNES, an attorney duly admitted to practice before the Courts of this State, hereby affirms under penalty of perjury: That on February 21, 2017, a reply-brief in the Court of Appeals filed on behalf of Mr. Mario Arjune, was served upon Mr. Arjune at 127-21 103rd Road, South Richmond, New York 11419, and on the Honorable Richard A. Brown, District Attorney, Queens County, 125-01 Queens Boulevard, Kew Gardens, New York 11415, Attn: William Branigan, A.D.A., by depositing true copies of the same in postpaid, properly addressed wrappers, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. Dated: New York, New York February 21, 2017