The People, Respondent,v.Howard Grubstein, Appellant.BriefN.Y.October 16, 2014Court ofAppeals No: To Be Argued By: APL -2013-00205 ELIzABETH L. SCHULZ 15 MINuTEs REQUESTED COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - HoWARD GRuB5TEIN Appellant. BRIEF FOR THE RESPONDENT DAVID M. H00vLER DIsTRIcT ATTORNEY FOR ORANGE COUNTY ATTORNEY FOR REsPoNDENT 18 SEWARD AVENUE MIDDLET0wN, NEW YORK 10940 TEL. 845-615-3640 ELIzABETH L SCHULZ ASSISTANT DIsTRICT ATTORNEY ANDREW R. KAss EXECUTIVE ASSISTANT DISTRICT ATTORNEY OF COUNSEL March 20, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES II PRELIMINARY STATEMENT 1 POINT I 12 THE DECISION AND ORDER OF THE APPELLATE TERM SHOULD BE AFFIRMED. CONCLUSION 32 TABLE OF AUTHORITIES State Cases: AJ Temple Marble & Tile, Inc. v Union Carbide Marble Care, Inc., 87 NY2d 574 [1996] 17 People v Acevedo, 104 AD3d 610 [2013] 14, 17 People v Agero, 234 AD2d 94 [ Dept., 1996] 21 People v Angelakos, 70 NY2d 670 [1987] 14, 18 People v Allen, 196 AD2d 876 [2nd Dept., 1993] 16 People v Arnold, 98 NY2d 63 [2002] 30 People v Arroyo, 98 NY2d 101 [2002] 18 People v Bachert, 69 NY2d 593 [1987] 27 People v Berezansky, 229 AD2d 768, lv denied, 89 NY2d 919 [1996] 13 People v Carter, 280 AD2d 977 [4’ Dept., 2001] 30 People v Chiu Mei Lan Kwok, 51 AD3d 814, 815 [2’ Dept., 2008] 14, 18 People v Concepcion, 17 NY3d 192, 195 [2011) 27 People v Cooks, 67 NY2d 100, 101-104 [19861 13-14, 16-20, 22-23, 27 People v Corso, 40 NY2d 578, 579-580 [1976] 19, 20 People v Crampe, 17 NY3d 469 [2011) 18 People v Cuadrado, 9 NY3d 362, 364-365 [2007] 13, 14, 16, 17-19, 20, 27 People v Degondea, 3 AD3d 148, 156-157 [1st Dept., 2008], lv den., 2 NY3d 798 3[2004] 13 —11— People v Donovon, 107 AD2d 433, 443, lv denied, 65 NY2d 694 [1985] 13 People v Finnegan, 85 NY2d 53, 58 [1995] 21,27 People v Forbes, 191 Misc. 2d 573 [2002] 21 People v Ford, 86 NY2d 397, 403 [1995) 30 People v Gayle, 168 AD2d 201 [1st Dept., 1990] 16 People v Graham, 55 NY2d 144, 152 [19821 17 People v Grubstein, 37 Misc. 3d 142(A), App. Term 9th & 10th Jud. Dist. [2012].. .4 People v Grubstein, 21 NY3d 1015 [2012) 4,5 People v Hillriegel, 78 AD3d 1381 [3rd Dept., 2010] 14 People v Hoffler, 74 AD3d 1632 [3rd Dept., 2010] 26 People v Hogue, 62 AD3d 410 [1st Dept., 2009]) 18 People v Howard, 12 NY2d 65 [1962] 19, 20 People v Jackson, 78 NY2d 638, 647 [19911 20 People v Jones, 44 NY2d 76 [1978] 30 People v Lard, 45 AD3d 1331 [4th Dept., 2007] 25 People v Lagas, 49 AD3d 1025, 1026-1027 [3k’ Dept., 2008] 14, 21, 22 People v Lancaster, 260 AD2d 660 [3rd Dept., 1999] 30 People v Louree, 8 NY3d 541 [2007] 18 People v Maraj, 44 AD3d 1090 [3rd Dept., 2007] 20, 21 People v McIntyre, 36 NY2d 10 [1974) 23 —111— People v McGann, 186 AD2d 392 [1st Dept., 1992] .16 People v Michael, 16 Misc. 3d 84, 86 [App. Term, 2’ Dept., 2007] 21 People v Rudolph, 21 NY3d 497 [2013] 28 People v Pierre, 80 AD3d 441 [1st Dept., 2011] 30 People v Tychanski, 78 NY2d 909, 911 [1991] 21 People v Tyrell, 22 NY3d 359 [2013] 14, 18, 22 People v Syville, 15 NY3d 391, 400-401 [2010] 16, 23, 24, 25 Federal Cases: Faretta v California, 422 US 806 [1975] 23 Gideon v Wainright, 372 US 335 [1963] 19 Holland v Florida, 560 US 63 [2010] 24 Pace v DiGuglielmo, 544 US 408 [2005] 24 Solem v Stumes, 465 US 638 [1984] 19 Whorton v Bockting, 549 US 406 [2007] 19 Statutes and Other Authorities: CPL Article 440 20 CPL 440.10 12, 18-20, 25-29 CPL 440.10[2j[b] 13 CPL44O.10[2][c] 9,13, 15, 17, 18, 20-22, 25-27, 28 CPL 440.l0[3][a] 9,21,22 -iv- CPL 440.10[3j[bj .28 CPL44O.30(7) 4,10,30,31 CPL 460.30(1) 20 23, 24 CPL 470.05 16 CPL 470.35, (1) 16, 27 CPL 470.3 5(2)(a)) 31 McKinney’s Cons. Laws of NY, Book 1, Statutes 94 17 VTL1192 30 \JTL1192.2 7 VTL1192.2-a 3 VTL 1192.3 3 COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- Court of Appeals APL No. 20 13-00205 HOWARD GRUBSTEIN, Respondent. x BRIEF FOR THE RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Susan Phillips Read, the defendant appeals fiom a December 10, 2012 decision and order of the Appellate Term for the Ninth and Tenth Judicial Districts. That decision reversed an order of the Justice Court, Town of Tuxedo, New York (Brown, J.), rendered January 6, 2011, which had granted the defendant’s motion pursuant to vacate the judgment of conviction pursuant to CPL 440.10. 1 INTRODUCTION AND PROCEDURAL HISTORY On September 5, 2008, members of the Town of Ramapo, New York Police Department received a complaint that reported that a man had acted belligerently and had verbally abused an employee at Jessie’s Bagels in the Town of Ramapo, Rockland County, New York. The police also obtained a description of the car that the man had driven and put out a notice for the driver and the vehicle. At about 1:14 p.m., acting on that dispatch, members of the Town of Tuxedo, New York Police Department stopped defendant’s car along northbound Route 17 in the Town of Tuxedo, Orange County, New York (A: 28).1 Following the stop, defendant exhibited indicia of intoxication, including glassy eyes and slurred speech, and the officer also detected an odor of an alcoholic beverage that was coming from defendant’s car and his person. Additionally, defendant admitted to drinking beer at 8:30 a.m. that morning. Thereafter, defendant failed a battery of filed sobriety tests and was arrested and was charged with driving while intoxicated. Defendant was taken to the Town of Tuxedo Police Department, and there, following the administration of Miranda and DWI refusal warnings, defendant consented to a chemical test of his breath. The results of that test indicated that his blood alcohol content was .22% by weight (A: 29). Numbers preceded by letter “A” refer to pages from the Appendix. 2 By separate simplified traffic informations, defendant was charged with aggravated driving while intoxicated in violation of VTL §11 92.2-a and driving while intoxicated in violation of VTL 1192.3. On October 30, 2008, the defendant, appeared before the Justice Court, Town of Tuxedo (Steyer, J.), and thereafter waived his right to counsel and pleaded guilty to one count of driving while intoxicated in satisfaction of the charges. On that same day, the Court imposed sentence. The defendant did not appeal from the judgment (A: 8-24). On June 5, 2010, the defendant was again arrested for driving while intoxicated and following that arrest, indicted under Orange County Indictment No. 2010-483 and charged with VTL §1 192[2-aj and 1 192[3], both class E felonies. The defendant was arraigned on the indictment in the County Court, Orange County (Berry, J.) and entered a plea of not guilty. His matter was then adjourned. On November 5, 2010, the defendant moved in the Justice Court, Town of Tuxedo, to withdraw his guilty plea on the grounds that he had represented himselfpro se in the Justice Court and that he had not been advised that, as a result of the prior conviction, a subsequent DWI arrest could be charged as a felony, and that he was also unaware of any potential defenses to the charges or his rights to challenge the basis for his arrest or the admissibility of his statements (A: 25-30). The People opposed the defendant’s motion on procedural and substantive grounds (A: 28-34). The Justice Court, Town of Tuxedo (Brown, J.) construed the defendant’s motion as a motion to vacate the judgment and summarily granted the defendant’s application (A: 7). In response to the Justice Court’s decision, the People filed a Notice of Appeal and Affidavit of Errors in the Appellate Term of the 9th and 10th Judicial District (A: 7). On appeal to the Appellate Term, the People argued that the trial court’s order failed to comply with the procedural requirements of CPL 440.30[7], that defendant’s principal claims that addressed the sufficiency of the plea allocution were procedurally barred as matters of record, and that his additional claims were also legally insufficient to grant relief. In a decision and order dated December 10, 2012, the Appellate Term reversed the trial court’s order and denied the motion to vacate judgment (see People v Grubstein, 37 Misc. 3d 142(A), App. Term & 10t1 Jud. Dist. [2012]). In its decision, the Appellate Term found that to the extent that adequate facts appeared in the record to evaluate the defendant’s claims regarding the sufficiency of the plea allocution, the only possible avenue of review was a direct appeal. Additionally, to the extent that the defendant’s claims were based on matters dehors the record, the Appellate Term found that the defendant’s motion failed to assert matters of fact sufficient to require a hearing (A: 3-6). Defendant sought leave to appeal to this Court. By permission of the Honorable Susan Phillips Read, leave to appeal was granted (People v Grubstein, 4 21 NY3d 1015 [2012)) (A: 1-2). Initially, this Court ordered the submission of the defendant’s appeal pursuant to the alternative procedure set down in section 500.11 of the Court’s Rules of Practice. However, after the parties had submitted their respective filings, this Court terminated review by the alternative procedure and ordered the parties to proceed in the normal course of briefing and argument. On appeal to this Court, the defendant argues that this waiver of right to counsel was invalid and that he was never advised by the trial court of his right to a direct appeal, thus, he was permitted to challenge his conviction pursuant to CPL 440.10, notwithstanding his failure to file a direct appeal. The defendant also claims that no hearing is require because the errors complained of are discernible from the existing record and, therefore, seeks reinstatement of the order of the Town of Tuxedo Court, which granted his motion to vacate his conviction. For reasons more fully discussed herein, the Appellate Term correctly reversed the order to vacate the judgment of conviction and its decision should be affirmed. STATEMENT OF FACTS The October 30, 2008 Proceedings On October 30, 2008, defendant appeared pro se before the Justice Court, Town of Tuxedo (Steyer, J.). At arraignment, the court advised defendant of the charges and that he was entitled to a lawyer. The court also advised defendant that if he could not afford a lawyer, one would be appointed free of charge. Additionally, while the court indicated that it could not tell defendant what to do, it advised him that this type of a matter would frequently involve counsel. The court also indicated that if he wished to dispose of the matter, defendant could speak with the assistant district attorney, but cautioned that the charges were significant (A: 14-15). Next, the court asked if defendant wished to adjourn the case to obtain counsel. Defendant indicated that he did not, and he then waived his right to counsel and his right to remain silent. The court also confirmed that defendant had discussed the matter with the assistant district attorney, and again advised him that he would be entitled to counsel and could ask to stop the proceedings and request to get a lawyer. In turn, defendant indicated that he understood what the court had told him. At that point, the People indicated that in light of defendant’s lack of any prior alcohol related convictions, and the fact that he was enrolled in Alcoholic Anonymous, that they would offer a plea to driving while intoxicated in violation 6 of VTL §1192.2 in satisfaction of the charges and on the condition that defendant complete his outpatient treatment (A: 15). Following the People’s placement of their offer on the record, the court confirmed that defendant understood that he would be pleading guilty to a serious charge, that if he pleaded guilty, he faced a very substantial fine, and that his license was going to be suspended for a period of six months. The court also advised defendant that he would have to attend a drinker driver program and that he would have to be driven to the program because his license was going to be suspended. That portion of the court’s inquiry was followed by a brief discussion as to defendant’s ability to take the course elsewhere, and his ability to apply for a conditional license. During the course of those conversations, the assistant district attorney again suggested that if defendant were hesitant to accept the plea, he should get an attorney who could assist him in the matter. Defendant responded that he was guilty, and also confirmed that he would be able to take a bus and a taxi to attend the program. Defendant then indicated that he would accept the plea, and in turn, the court accepted the guilty plea and found defendant guilty of driving while intoxicated in violation of VTL §1192.2 (A:15-19). The Court then sentenced defendant to the minimum fine of $500.00, ordered that defendant pay the mandatory surcharge, and revoked defendant’s license for six months while granting defendant a 20 day stay in order to apply for a conditional license. The 7 court and the prosecution also advised defendant that all other matters regarding his license had to go through the Department of Motor Vehicles (A: 19-2 1). At that point, defendant appeared to make an inquiry regarding an attorney, and in response to the People’s application, the court advised defendant that it was then going to adjourn the proceedings until November 20th Defendant then asked if his attorney would then show up at the next court date. The court responded that it was up to defendant, and further advised that he would have to hire an attorney or, if he could not afford counsel, that it would assign Legal Aid. At that point, defendant said no and that he would just plead guilty. The court was prepared to then reject defendant’s plea and adjourn the proceedings. Defendant then insisted that he wanted to plead guilty and would accept the punishment. The court then reiterated that if defendant pleaded guilty, it would impose a fine and suspend defendant’s license for six months and also grant the stay. Additionally, the court indicated that defendant would have to attend the drinker driver program. Defendant indicated that was “fine” and that he would do that. Finally, defendant stated in no uncertain terms that he didn’t need a lawyer. The court then reinstated defendant’s plea and sentenced him to a $500.00 fine, imposed the mandatory surcharge, and suspended the license and granted the stay. Finally, the court granted defendant’s request for one month to pay the fine (A: 21-24). 8 The Defendant’s Notice Motion to Withdraw his Guilty Plea By a notice of motion dated October 21, 2010, the defendant moved to withdraw his guilty plea, entered on December 2, 2008, before the Town of Tuxedo Justice Court (Steyer, J.). In the affirmation filed in support of his motion, the defendant stated that he did not have counsel at the time of the guilty plea and that the Town of Tuxedo Court had failed to advise him that he could be charged with a felony DWI as a result of his misdemeanor DWI conviction in the Town of Tuxedo Court. The defendant stated that he had recently been arrested for a second DWI, which had resulted in his indictment on felony DWI charges in the Orange County Court. The defendant also stated that the court failed to advise him of any potential defenses to the charge, of his right to challenge the basis for his arrest and also failed to advise him of his right to challenge any statements attributed to him by the arresting officer. As a result of this, the defendant asked the Court to vacate his December 2, 2008 guilty plea (A: 25-27). The People’s Affirmation in Opposition The People filed an affidavit in opposition to the defendant’s notice of motion, dated November 29, 2010. The People opposed the defendant’s motion on the grounds that it was procedurally barred as a matter of record pursuant to CPL 440. 10[2J{cj and where the defendant also failed to challenge the sufficiency of the allocution so as to create an adequate record for appeal (CPL 440.1 0[3J [a]). The 9 People also argued that the trial court had no separate legal duty to inform the defendant of the collateral consequences of a guilty plea, such as exposure to an enhanced future charge as a result of a prior conviction, and that defendant’s protestations of innocence did not warrant vacating the plea and were otherwise unsupported by the record (A: 28-34) The Town of Tuxedo Court’s Decision In a decision and order dated January 6, 2011, the Town of Tuxedo Court (Brown, Jj, treated the defendant’s application as a motion to vacate the judgment of conviction and in so doing, granted his application and vacated the judgment of conviction (A: 7). The People’s Notice of Appeal and Affidavit of Errors In response to the trial court’s decision to grant the defendant’s motion, the People filed a Notice of Appeal in the Appellate Term.2 In support of that appeal, the People filed an affidavit of errors, which outlined their allegations as to the errors made by the trial court. Specifically, the People alleged that the trial court’s decision failed to comply with the procedural requirements of CPL 440.30(7)), that the defendant’s supporting affidavit was legally insufficient to summarily grant vacatur, that his claim was procedurally barred as a matter of record pursuant to CPL 440.1 0(2)(c), and that the trial court was not required to inform him that his 2 The People have provided a courtesy copy of their Notice of Appeal from the local court’s decision and order since it has not been included in the Appendix. misdemeanor could serve as a predicate offense for a future felony charge or otherwise advise him of any underlying defenses. The People also argued that the defendant’s claims were otherwise insufficient to grant vacatur (A: 8-1 1). The Town of Tuxedo Court’s Return to the Affidavit of Errors On April 27, 2011, the Town of Tuxedo Court (Brown, J.) filed a response to the People’s affidavit of errors. In the response, the court indicated that it had granted the defendant’s application based upon its review of the transcript, which had revealed that the defendant’s waiver of counsel was not knowing or intelligent and that the defendant had appeared to vacillate in his waiver and otherwise did not seem to understand the risks of appearing pro se (A: 12). 11 POINT I THE DECISION AND ORDER OF THE APPELLATE TERM SHOULD BE AFFIRMED. (In response to Points I and II of the Defendant’s Brief). On appeal to this Court, defendant argues that his waiver of counsel was defective and that the trial court failed to advise him of his right to take an appeal, and that, as a result, he should not be barred from challenging his conviction on collateral review as a result of his failure to pursue a direct appeal. As shown below, defendant’s arguments to this Court are, to a large extent, unpreserved for appeal. In any event, in reversing the trial court’s order that granted his motion to vacate judgment, the Appellate Term correctly applied the long-standing principles governing state post-judgment claims that are premised on matters of record and therefore, correctly held that defendant’s claims that were reviewable as matters of record were procedurally barred from post-judgment review. In addition, to the extent that the Appellate Term found that certain of defendant’s claims were properly raised in a CPL 440.10 proceeding, it also correctly determined that defendant’s factual pleadings were insufficient to order a hearing. Because certain of his arguments are arguably not properly raised on appeal to this Court, and because defendant also fails to show that the Appellate Term misapplied the law with respect to either branch of its decision, the Appellate Term’s Decision and Order should be affirmed in its entirety. 12 The seminal decision interpreting the mandatory provisions of CPL 440.10[2j[c] is People v Cooks (67 NY2d 100 [1986]), decided by a unanimous court in 1986. The Court held that if the record of the plea proceedings “is sufficient to permit review of the issue on direct appeal, the sufficiency of the defendant’s plea allocution cannot be reviewed collaterally in a CPL 440.10 proceeding” (67 NY2d, at 101). As the Court correctly recognized, the clear purpose of the mandatory statutory provisions found in CPL 440. 10[2][c] “is to prevent CPL 440.10 from being employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal (CPL 440. 10[2][b]) or could readily have raised it on appeal but failed to do so” (j4 at 103-104; see People v Cuadrado, 9 NY3d 362, 364-365 [2007]; People v Degondea, 3 AD3d 148, 156- 157 [1st. Dept., 2003], lv denied, 2 NY3d 798 [2004])(we give effect to the legislative intent that the CPL 440.10 motion not be employed as a substitute for direct appeal); People v Donovon, 107 AD2d 433, 443, lv denied, 65 NY2d 694 [1 985 j)(the purpose of a CPL 440.10 motion is to inform a court of facts not reflected in the record and unknown at the time of the judgment); People v Berezansky, 229 AD2d 768, lv denied, 89 NY2d 919 [1996]). Thus, in recognition of the legislative intent found in the language contained in CPL 440.lO[2][c], reviewing courts, including this Court, have consistently held that a defendant’s post-judgment challenge to the sufficiency of a plea allocution or to like claims, 13 including jurisdictional claims and other claims attacking the voluntariness of a guilty plea, that are based on matters of record are foreclosed from post-judgment review (see People v Cooks, 67 NY2d at 101; People v Cuadrado, 9 NY3d at 365; People v Angelakos, 70 NY2d 670 [1987]; People v Hiliriegel, 78 AD3d 1381 [31( Dept., 2010]; People v Acevedo, 104 AD3d 610 [2013]; People v Chiu Mei Lan Kwok, 51 AD3d 814, 815 [2w’ Dept., 20081; People v Lagas, 49 AD3d 1025 [3rd Dept., 2008]). These principles were again affirmed in People v Tyrell (22 NY3d 359 [2013]), where this Court expressly held that deficiencies in plea allocutions that are apparent from the record may be raised for the first time on direct appeal and are not subject to preservation. Thus, like a challenge to the error to inform a defendant of the mandatory period of post-release supervision, it is clear that the grounds identified by the local criminal court can only be raised on direct appeal. Here, defendant claimed, in part, that the trial court failed to advise him that a subsequent charge for driving while intoxicated in New York would be charged as a felony and that the trial court also failed to advise him of potential defenses or of his right to challenge the basis for his arrest and the admissibility of his statements. In effect, he challenged the trial court’s failure to address those issues and therefore the sufficiency of the trial court’s plea allocution. In turn, it is also evident that the trial court decided the motion based on its review of the transcript. 14 Thus, on that basis, the Appellate Term correctly held that the review of defendant’s claims for which adequate facts appeared in the record was barred and that the only possible avenue for review of those claims was by way of a direct appeal. Seeking to avoid the clear procedural default mandated by CPL 440.lO[2][c], defendant instead argues the denial of the right to counsel and the related claim that the mandatory procedural bar to collateral review under CPL 440.lO[2][c] does not apply to unrepresented defendants, and, in particular, to defendants such as himself who were never informed by the trial court of their right to take an appeal. These arguments should be rejected. As a threshold matter, these claims are unpreserved for review by this Court. In particular, in the trial court, defendant never claimed the denial of the right to counsel as a separate claim or, that in the face of the People’s procedural arguments that the denial of counsel constituted grounds for his failure to take a direct appeal. Importantly, defendant only offered in his moving papers the fact that he was rc in the trial court proceedings. Yet, the fact that a defendant represents himselfpç ç in a criminal proceeding as is his express constitutional right is manifestly different from a constitutional claim raising the denial of the right to counsel as well as the related legal argument raised by defendant in this appeal that he should be excused from the procedural bar contained in CPL 440.lO[2][c] as a result of his p 15 status. Moreover, defendant never claimed or pleaded facts that explained his “unjustifiable failure” to raise his claims on direct appeal, including the fact that the trial court never advised him of his right to take an appeal. Thus, defendant’s arguments, which he raises for the first time on appeal and which are manifestly different from the underlying claims that he raised in his motion to vacate judgment and which are unsupported by his own factual pleadings, are ostensibly unpreserved for appeal (CPL 470.05; 470.35; see ç..g People v Syville, 15 NY3d 391, 40O401 [2010];People v McGann, 186 AD2d 392 [1st Dept., 1992]; People v Gayle, 168 AD2d 201 [1’ Dept., 1990]; People v Allen, 196 AD2d 876 [2’ Dept., 1993]). In any event, defendant’s arguments regarding the denial of the right to counsel as a statutory exception to the procedural bar to collateral review for matters that appear on the record should be rejected. Indeed, the creation or recognition of such a statutory exception as grounds for a defendant’s failure to raise the underlying challenge on direct appeal ignores both the plain language found in CPL 440.1 0[2] [c] and the underlying core principle that the CPL 440.10 procedure is not available as a substitute for a direct appeal (see People v Cooks, 67 NY2d at 103; People v Cuadrado, 9 NY3d at 364-365). The primary objective ofjudicial interpretation of a statute is to give effect to the legislative intent. When the language of a statute is clear, it is presumed that the intent is reflected in the 16 words chosen by the Legislature and the plain meaning they express (McKinney’s Cons. Laws of NY, Book 1, Statutes 94; see A.J. Temple Marble & tile, Inc. v Union Carbide Marble Care, Inc., 87 NY2d 574, 580 [1996]; People v Graham, 55 NY2d 144, 152 [1982]). Additionally, whether a statutory provision is mandatory is to be determined primarily from the legislative intent gathered from the law and the surrounding circumstances, the purpose of the provision, the policy to be promoted, and the results that would follow if the reviewing court were to reach an opposite conclusion. Here, the Court has already decided that underlying threshold question, holding that the provisions under CPL 440. 10[2j[c] mandate the denial of a motion to vacate judgment where the ground or issue raised upon the motion is a matter of record that can be raised on direct appeal (ç People v Cooks, 67 NY2d 10 1-103; People v Cuadrado, 9 NY3d at 365)(a motion on this ground as on all the other grounds listed in the statute must be denied when the circumstances described in CPL 440.10[2]{c] exist)). In particular, in Cuadrado, the Court expressly declined to create an exception for certain “fundamental” or “jurisdictional” defects that appear on the record (see also People v Acevedo, 104 AD3d 610). The Court also expressly recognized that it was “within the power of the Legislature to make reasonable rules” governing a defendant’s access to post judgment relief and that “[ajs long as those rules give a defendant a fair opportunity to vindicate his rights, they should be enforced. CPL 440.1 0[2J [cJ is 17 such a rule” (People v Cuadrado, 9 NY3d at 365). Thus, in both Cooks and Cuadrado, this Court has unquestionably applied the mandatory procedural bar and, consistent with the intent and purpose of the statutory provisions found in CPL 440. 10[2j[c], has expressly declined to create an exception for even certain fundamental defects of the type now urged by defendant. In applying those salient principles, defendant’s claims that the trial court erroneously permitted him to proceed pç se without making the proper inquiry, is itself a matter of record that can be raised for the first time on direct appeal (çç People v Crampe, 17 NY3d 469 [201 lj; People v Arroyo, 98 NY2d 101 [2002)). Likewise, the additional deficiencies that defendant actually raised in the trial court also relate, in part, to matters of record as does his allegation that he was never advised of his right to take an appeal. If, as in defendant’s case, any defect in allowing him to proceed pro se or other alleged deficiency in the allocution, is evident from a review of the existing record, then by definition, the claim is a matter for direct appeal (see People v Cooks, 67 NY2d at 101; see also People v Tyrrell, supra; People v Angelakos, 70 NY2d at 672-673; People v Cuadrado, 9 NY3d at 365; People v Lagas, 49 AD3d 1025, at 1026-1027; People v Chiu Mei Lan Kwok, 51 AD3d at 814-815; see also People v Louree, 8 NY3d 541 [2007); People v Hogue, 62 AD3d 410 [1st Dept., 2008])(defendant not entitled to raise PRS error by way of a CPL 440.10 motion because the error is clear from the 18 existing record). Indeed, defendant’s arguments addressed to the counsel issue are presented no differently from those addressed to the same issues that were raised by other defendants on direct appeal. At the same time, it is clear that the proposed reading of the statute that is urged by defendant would violate the core principle recognized in Cooks and its progeny that the CPL 440.10 procedure is not intended to act as a substitute for a direct appeal. Accordingly, defendant fails to demonstrate that his claims fall outside of the provisions that bar collateral review of claims that are matters of record which must be raised on direct appeal. The case law cited by defendant for the proposition that he should be excused from the procedural bar is equally unavailing. This is true for several reasons. In the first instance, People v Howard, 12 NY2d 65 [1962], was decided not only prior to the enactment of the statutory remedy for post-judgment relief under CPL 440.10, but also prior to the seminal decision in Gideon v Wainwright (372 US 335 [1963]), which to date, is the only decision that was afforded complete retroactivity on collateral review by the United States Supreme Court (see Solern v Stumes, 465 US 638 [1984]; Whorton v Bockting, 549 US 406, 416- 419 [2007]). With the enactment of the Criminal Procedure Law, the Legislature codified the various grounds for relief that were recognized under the common law writ of error corain nobis (see People v Corso, 40 NY2d 578, 580 [1976]). Thus, under the modern Criminal Procedure Law, the power of a trial court to vacate a 19 judgment is a creature of statute. As such, the scope of available relief is defined by the specifically enumerated terms of the applicable statute ( People v Jackson, 78 NY2d 638, 647 [19911). It is also the case that there is no constitutional right to post-judgment relief in the form of a collateral attack on the judgment. Thus, it is also a valid exercise of the Legislature to regulate the manner in which a defendant is entitled to raise particular claims by means of a post-judgment motion through the enactment of reasonable rules (see People v Cuadrado, 9 NY3d at 365). As this Court has already recognized, CPL 440.10 [2] [c] is such a reasonable rule and that it was within the Legislature’s choice to require that defects that can be raised on direct appeal be “raised in that way or not at all” (Id.; see also People v Cooks, 67 NY2d at 103-104) (defendant lost that avenue of review by his failure to raise his claim as part of his p appeal). Accordingly, the older authority cited by defendant in Howard as well as in the Third Department’s decision in People v Maraj (44 AD3d 1090 [2007]) was effectively overruled by the enactment of CPL 440.10 ( People v Corso, 40 NY2d at 579-580)(holding that applications seeking former common law Montgomery relief are encompassed by CPL 460.30 and should be brought in the manner prescribed by statute); People v Cuadrado, 9 NY3d at 365)(rejecting defendant’s arguments based on case law cited by defendant decided prior to the enactment of CPL Article 440). 20 Defendant’s reliance on People v Marai is also misplaced for two other reasons. Importantly, less than two years after Marai was decided the Third Department effectively disavowed its holding in Maraj, finding that nearly identical claims were procedurally barred (see People v Lagas, 49 AD3d 1025). In addition to the decision’s reliance on older authority that did not interpret the statute, the Maraj decision also conflates the provisions found in CPL 440.l0[3]{a] with the provisions contained in CPL 440.I0[2j[c]. Unlike CPL 440.10[2][c], CPL 440.10[31[a] specifically bars the application of the permissible procedural bar to a claim that involves the denial of counsel. In contrast, CPL 440. 10[2][c] does not contain any similar provision. In enacting the two different statutory provisions, the Legislature is presumed to be aware of the fact that it enacted two different provisions regulating a defendant’s access to post-judgment relief, one of which expressly contains an exception for claims involving the denial of the right to counsel while the other does not. Under the circumstances, the absence of such a statutory exception in CPL 440.1 O[2] [c] is a strong indication that “its exclusion was intended” (see People v Finnegan, 85 NY2d 53, 85 [1995]; People v Tychanski, 78 NY2d 909, 911 [1991]). Furthermore, as a statutory form of relief, the Court lacks the authority to create a statutory exception( People v Agero, 234 AD2d 94 [1st Dept., 1996]; People v Michael, 16 Misc 3d 84, 86 [App. Term, 2’’ Dept., 2007]; People v Forbes, 191 Misc 2d 573 [2002])(all recognizing that a 21 trial court lacks the authority to grant vacatur in the interests ofjustice). Significantly, application of the mandatory bar found in CPL 440.10[2][c] is not inconsistent with the exception contained in CPL 440.10[3][a]. A defendant who claims the denial of the right to counsel is excused from a preservation standpoint of having to make an appropriate record that would entitle him to raise the claim on direct appeal with respect to matters that are otherwise outside of the record but were known to the defendant at the time of his trial for the very reason that he was denied the right to counsel. However, if the alleged error is apparent from the record, as is alleged in defendant’s matter, then, notwithstanding the fact that the claim involves the denial of the right to counsel, the defendant is in a position to raise the issue for the first time on appeal (see çg People v Tyrell, supra). Thus, from a statutory standpoint, the previously recognized common law exception relating to the denial of the right to counsel survives under CPL 440.10[3][a] but not when the circumstances set forth in CPL 440.10[2][cj exist (see çg People v Lagas, 49 AD3d 1025). Second, this Court should also reject defendant’s overly expansive interpretation of the terms “unjustifiable failure” to raise a claim on direct appeal (CPL 440.10[2J{c]). Defendant argues that the fact of the denial of his right to counsel provides the justification for his failure to raise the claim on direct appeal. Defendant’s reasoning is circular, given that it was he who in the face of repeated 22 advice from the trial court adamantly insisted on waiving that right and pleading guilty. Moreover, in Cooks, this Court expressly recognized that even a defendant who represents himselfp se and fails to raise an issue that is a matter of record on direct appeal is procedurally barred from raising the same claim in a collateral proceeding (see People v Cooks, supra, at 103-104). Tn holding that the defendant’s claims were procedurally barred as matters of record, Cooks did not attempt to retrospectively consider whether or not the defendant’s waiver of the right to appellate counsel was itself the reason for his failure to raise the claim on direct appeal. Because a defendant has a clear constitutional right to represent himselfpç se (see Faretta v California, 422 US 806 [1975]; People v McIntyre, 36 NY2d 10 [1974]), the fact that he voluntarily chooses to exercise that right therefore cannot be the basis for his failure to raise a claim on direct appeal. Pivotally, even if defendant failed to file a timely notice of appeal because he was initially unaware of his right to an appeal, he was not without a remedy that might have subsequently afforded him the ability to pursue a direct appeal ( CPL 460.30(1); see also People v Syville, 15 NY3d 391 [2010]). In other words, as used in the statute, the terms “unjustifiably failed to raise the issue on appeal” require more than an erroneous ruling that granted defendant’s application to waive his right to counsel and represent himselfp se. The terms necessarily refer to some other external factor, such as state interference, that arbitrarily prevented the 23 defendant from pursuing his appellate remedies. By analogy, a criminal defendant seeking federal habeas corpus review is only entitled to equitable tolling of the federal statute of limitations upon a showing that he diligently pursued his rights and that there was some extraordinary circumstance that stood in the way of the filing of a timely petition (see g Pace v DiGuglielmo, 544 US 408 [2005]; Holland v Florida, 560 US 631 [2010]). Here, the record is clear that defendant never pursued either a direct appeal or any other post-judgment appellate remedies. Even at the time that he was arrested for a subsequent DWI, he never sought permission to file a late notice of appeal or even a writ of error coram nobis in the intermediate appellate court (CPL 460.30(1); People v Syville, supra). In fact, in the trial court, the defendant never demonstrated, much less even claimed, that he was prevented from pursuing his appellate rights. Indeed, even post-conviction, nothing prevented him from seeking legal advice. Instead, it was only when he was again arrested and charged with felony drunk driving that he first gave any additional thought to his misdemeanor conviction. Together, the absence of any record of some external factor, coupled with the fact that defendant insisted on pleading guilty without an attorney despite the trial court’s repeated warnings, demonstrate why the statute requires something more than a defendant’s reliance on the existing trial court record in order to explain the failure to raise a claim on appeal. Given the absence of a constitutional right to collaterally attack a criminal 24 judgment and the fact that the Legislature is entitled to enact reasonable restrictions on a defendant’s statutory right to be able to raise certain types of post- judgment claims, including jurisdictional or fundamental claims, such a requirement that a defendant show both due diligence in pursuing appellate remedies as well as some extraordinary circumstances that prevented him from raising the claims on direct appeal as a predicate to claiming an “unjustifiable failure” to do so is not inherently unreasonable. Otherwise, any error in granting the defendant’s motion to represent himselfp se, or otherwise failing to notify him of his right to an appeal would impermissibly afford the defendant the ability to misuse the CPL 440.10 procedure as a substitute for a direct appeal, regardless of whether the claimed error can be reviewed on the basis of the existing record. The fact that this Court in People v Syville suggested in a footnote that a defendant might be able to satisfy the statutory threshold for establishing a justifiable reason for failing to raise a claim on direct appeal owing to his attorney’s failure to file a timely notice of appeal did not decide the matter ( 15 NY3d at 401, n. 3). The Court’s discussion was entirely unnecessary to its decision. The interpretation of the applicability of CPL 440.1 0[2J [c] was not before the Court and was in no way central to the holding. Consequently, the statement constituted dicta. More fundamentally, the very rationale for the Court’s statement and the decision in People v Lard (45 AD3d 1331 [4th Dept., 2007]) that 25 was cited by the Court was effectively overruled or negated by the Syyille ruling. If a defendant can seek additional relief in the intermediate appellate court in the form of coram nobis that affords him the further opportunity to take a direct appeal, then the defendant cannot and should not be able to claim a justifiable failure under CPL 440.1 0[2] [c] without first seeking that relief in the intermediate appellate court, or, in this case, the Appellate Term. The failure to adopt such a reasonable interpretation of CPL 440.10[2j[c] otherwise produces an absurd outcome, resulting in the complete conflation between a direct appeal and collateral review under CPL 440.10. Such a problematic outcome is illustrated by the Third Department’s decision in People v Hoffler, 74 AD3d 1632 [2010]). In Hoffler, the Third Department permitted a defendant to raise a claim of ineffective assistance of counsel that was premised entirely on matters of record in a CPL 440.10 proceeding because the defendant was represented by the same attorney on direct appeal. The Third Department concluded that defense counsel’s failure to raise his own ineffectiveness on direct appeal was not “unjustifiable” and thus held that the trial court should not have denied the motion pursuant to CPL 440.10[2][c] (see People v Hoffler, 74 AD3d 1632). The Appellate Division went on to decide the specific claims and found them to be meritless. But, in doing so, the Third Department effectively converted the CPL 440.10 procedure into a direct appeal or otherwise conflated its role as the 26 reviewing appellate court with its separate role as the court of original jurisdiction to review a claim of ineffective assistance of appellate counsel (ee People v Bachert, 69 NY2d 593 [1987]). Hoffler provides no good reason for the appellate courts to legislate under the guise of statutory interpretation when the defendant was afforded an existing remedy in the intermediate appellate courts (g., People v Finnegan, 85 NY2d 53, at 58). Such an interpretation ignores the very essence of Cooks that requires a defendant to seek review of his claims in the appropriate forum and in accordance with the procedural requirements for that forum. The road that defendant seeks to bring this Court down simply eviscerates the critical distinctions between a direct appeal and post-judgment relief pursuant to CPL 44O.lO. In addition to the danger of conflation between the two clearly distinct forms of relief, other important policy considerations militate against the adoption of the expansive interpretation of the narrow exception to the procedural bar contained in CPL 440.1O[2][cJ that is urged by defendant. As the Court itself recognized in Cuadrado, “a less restrictive rule would be an invitation to abuse” (9 NY3d at 365). Because there is no statutory time-frame in which a defendant can move to vacate judgment, a defendant would be able to delay his claims for years, thereby waiting Because the Appellate Division in Hoffler affirmed the denial of the motion to vacate judgment, the decision was not decided adversely against the People and therefore the People were barred from seeking further review of the holding as it related to the application of CPL 440.1 0[2j [cJ (çç çg CPL 470.35 [11; People v Concepcion, 17 NY3d 192, 195 [20111). 27 to potentially take advantage of any future changes in the law or worse still, making it exceedingly difficult if not impossible for the People to revive the case (14). Second, if the Court were to find on this record that defendant demonstrated cause for his failure to raise his claims on direct appeal, such a ruling would serve as an open invitation to defendants statewide to file 440.10 motions, thereby jeopardizing the convictions in hundreds of thousands of criminal prosecutions in which defendants pleaded guilty after waiving their right to counsel. The total numbers would be even more staggering if the decision were to be given retroactive application on collateral review, a circumstance that would enable every similarly situated defendant whose claims were previously denied on the basis of CPL 440.10[2][c] to file a successive motion (CPL 440.10[3][b]; see People v Rudolph, 21 NY3d 497 [201 3J)(expressly declining to extend retroactive relief on collateral review)). In short, a defendant like Grubstein who insisted on representing himselfp se despite the trial court’s repeated admonitions should not be able to avoid the procedural bar contained in CPL 440.10 and thereby be permitted to seek collateral review of claims that are matters of record as a consequence of his own doing. In addition, the Appellate Term also correctly held that defendant’s remaining claims were insufficient to warrant a hearing. In particular, defendant’s 28 supporting affidavit was legally insufficient to raise a factual issue to warrant a hearing. While defendant asserts that it is somehow inappropriate for the People to argue that defendant’s claims were procedurally barred as matters of record and then argue that he failed to seek a hearing to resolve those claims, they are not at all inconsistent in the context of a motion pursuant to CPL 440.10. As the Appellate Term correctly found, to the extent that defendant’s motion challenged the sufficiency of the plea allocution, it should have been raised on direct appeal as a matter of record. Nevertheless, insofar as defendant’s claims could be construed as matters dehors the record, the defendant’s pleadings failed to state issues of fact sufficient to require a hearing. These theories are not at all inconsistent and, in fact, both arrive at the same conclusion that summary denial of defendant’s motion was the only appropriate remedy. Aside from this, defendant’s statement that his waiver of counsel was defective is belied by the record. Defendant was repeatedly warned about the dangers of proceeding pro se and at one point, the Court even refused to accept his plea and it was only through his insistence that he was permitted to proceed with the plea. While the defendant makes much of the fact that his waiver was not knowing, voluntary and intelligent, the truth is that he never would have challenged the plea if he had not been arrested for a subsequent felony DWI. 29 Still, the trial court had no legal duty to inform defendant that his misdemeanor conviction could serve as a predicate for a felony charge if he were again charged with a violation of VTL §1192 (see People v Ford, 86 NY2d 397, 403 [1995]; People v Lancaster, 260 AD2d 660 [311 Dept., 1999]; People v Carter, 280 AD2d 977 [4th Dept., 2001]; People v Pierre, 80 AD3d 441 [201 1]). In fact, as an indispensible element to the felony charge, defendant was deemed to have notice of that fact, irrespective of whether the trial court made him aware of it at the time of his plea. Similarly, the trial court had no obligation to advise defendant of the possible defenses to the underlying charges, and, indeed, it could not assume that role (see People v Arnold, 98 NY2d 63 [2002]). Likewise, the defendant’s unsubstantiated claim of a possible defense to the charges was likewise legally insufficient to grant relief (see People v Jones, 44 NY2d 76 [1978]). The trial court also never misadvised defendant as to the benefits of counsel, as he suggests. Rather, the trial court properly informed defendant that should he seek counsel, it was between him and his attorney to decide the scope of the representation. Moreover, the defendant’s argument that the trial court misadvised him as to the benefits of counsel is also unpreserved, as it was never raised in his original motion to vacate the judgment of conviction. Finally, the defendant takes issue with the People’s argument in the lower court which challenged the justice court’s failure to set forth findings of fact and 30 conclusions of law in support of its decision, pursuant to CPL 440.30(7). Defendant states that the justice court’s response to the People’s Affidavit of Errors filed in the Appellate Term cured any purported defect in its original decision. To the extent that this argument did not form the basis for the Appellate Term’s reversal of the justice court’s decision and order, this Court does not have jurisdiction to review this claim on appeal (CPL 470.35(2)(a)). Nevertheless, should this Court reach this argument on the merits and in the event that the Appellate Term’s decision and order is reversed, the matter should be remitted to the Appellate Term for further consideration of the People’s additional procedural arguments. CPL 440.30[7] requires that the court, in determining a motion to vacate judgment, “set forth on the record its findings of fact, its conclusions of law, and the reasons for its determination.” These requirements are mandatory and, despite the defendant’s argument to the contrary, the lower court’s terse response to the People’s affidavit of errors did not cure the defect in its decision. Thus, for all of these reasons, and for the reasons that were stated by the Appellate Term, the decision and order of the Appellate Term should be affirmed. 31 CONCLUSION The Appellate Term’s decision and order should be affirmed. Respectfully submitted, DAVID M. HOOVLER District Attorney of Orange County 18 Seward Avenue Middletown, New York 10940 (845) 615-3640 ELIZABETH L. SCHULZ Assistant District Attorney ANDREW R. KASS Executive Assistant District Attorney Of Counsel Dated: Middletown, New York March 20, 2014 32 COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, Respondent AFFIRMATION CERTIFYING DIGITAL SUBMISSION - against - HOWARD GRUBSTEIN, Court of Appeals APL No. 20 13-00205 Appellant. --- STATE OF NEWYORK ) ss.: COUNTY OF ORANGE ) I, Elizabeth L. Schulz, an Assistant District Attorney in the Office of David M. Hoovier, 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 copies of the respondent’s brief on appeal with the hard copies filed simultaneously with the Court of Appeals and that that the foregoing are identical digital copies of the corresponding documents. Dated: Middletown New York March 20, 2014 ELIZABETH L. SCHULZ Assistant District Attorney AFFIDAVIT OF SERVICE STATE OF NEW YORK) ) SS: COUNTY OF ORANGE) CAROL M. BARNES, being duly sworn, deposes and says: She is over 18 years of age and that on the 20th day of MARCH, 2014, she served three (3) copies of RESPONDENT’S BRIEF filed in The PeoDle of the State of New York v. HOWARD GRUBSTEIN., Court of Appeals No. APL 2013-00205, upon RICHARD L. HERZFELD, ESQ., 104 West 40th Street, 20th Floor, New York, New York 10018 in a securely postpaid wrapper by depositing same in a Post Office Box regularly maintained by the United States Postal Service, Middletown, New York. CAROL M. BARNES Sworn to before me this 20th day of March, 2014. Notary iBETHLscHu1 Notary Pubtic, State at New York No. 02SC6209351 IQualltted in Orange County -omrnI$sjon Expires July 27, 2017