The People, Respondent,v.Howard Grubstein, Appellant.BriefN.Y.October 16, 2014State of New York Court of Appeals BRIEF FOR DEFENDANT-APPELLANT DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Appellate Term, Second Department, Cal No. 2011-314 OR CR Justice Court of the Town of Tuxedo, Orange County PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- HOWARD GRUBSTEIN, Defendant-Appellant. TO BE ARGUED BY: RICHARD L. HERZFELD, ESQ. COURT OF APPEALS NO. APL-2013-00205 TIME REQUESTED: 10 MINUTES RICHARD L. HERZFELD, ESQ. Attorney for Defendant-Appellant 104 West 40th Street, 20th Floor New York, New York 10018 (212) 818-9019 Date Completed: January 31, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . i STATEMENT PURSUANT TO RULE 500.5(d)(1). . . . . . . . . . . . 1 QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . 4 MOTION TO VACATE. . . . . . . . . . . . . . . . . . . . . . . 4 DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . . 6 AFFIDAVIT OF ERRORS.. . . . . . . . . . . . . . . . . . . . . 6 RESPONSE TO AFFIDAVIT OF ERRORS . . . . . . . . . . . . . . . . 6 APPELLATE TERM DECISION.. . . . . . . . . . . . . . . . . . . . 7 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 8 POINT I.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 APPELLANT’S ARTICLE 440 APPLICATION WAS NOT BARRED AS HIS FAILURE TO TAKE A DIRECT APPEAL WAS NOT UNREASONABLE POINT II. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 AS THE TRIAL COURT FAILED TO PROPERLY ENSURE THAT APPELLANT UNDERSTOOD THE RISKS OF PROCEEDING PRO SE, APPELLANT’S WAIVER WAS INVALID AS A MATTER OF LAW AND HIS MOTION TO VACATE WAS PROPERLY GRANTED CONCLUSION.....................................................15 ii TABLE OF AUTHORITIES Cases People v. Crampe, 17 N.Y.3d 469 (2011). . . . . . . . . . . . 12 People v. Grubstein, 37 Misc.3d 142(App. Term 2012).. . . . . 2,7 People v. Hoffler, 74 A.D.3d 1632(3d Dept. 2010). . . . . . . . 9 People v. Kinchen, 60 N.Y.2d 772 (1983) . . . . . . . . . . . . 3 People v. Lard, 45 A.D.3d 1331 (4th Dept. 2007).. . . . . . . . 8 People v. Maraj, 44 A.D.3d 1090 (3d Dept. 2007).. . . . . . . . 9 People v. Mitchell, 61 N.Y.2d 580 (1984). . . . . . . . . . . 11 People v. Syville,15 N.Y.3d 391(2010).. . . . . . . . . . . . . 8 People v. West, 100 N.Y.2d 23 (2003). . . . . . . . . . . . . 10 Constitution, Statutes and Rules Sixth Amendment to the United States Constitution.. . . . . . 14 Fourteenth Amendment to the United States Constitution .. . . 14 New York State Constitution Article 1, §6 . . . . . . . . . . 14 CPL §440.10(2)(c).. . . . . . . . . . . . . . . . . . 2, 6, 7, 8 CPL 440.30(3).. . . . . . . . . . . . . . . . . . . . . 5, 12, 13 CPL §440.30(7). . . . . . . . . . . . . . . . . . . . . . . . 13 CPL §450.90.. . . . . . . . . . . . . . . . . . . . . . . . . . 2 VTL §1192.2.. . . . . . . . . . . . . . . . . . . . . . . . 1, 4 22 NYCRR §671.5.. . . . . . . . . . . . . . . . . . . . . . . . 9 1 STATE OF NEW YORK COURT OF APPEALS --------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Case No. 2011-314 OR-CR HOWARD GRUBSTEIN, Defendant-Appellant --------------------------------------x STATEMENT PURSUANT TO RULE 500.5(d)(1) By permission of the Hon. Susan Phillips Read, Associate Judge of the Court of Appeals, granted July 26, 2013 (A2*), appeal is taken from an order of the Appellate Term, Second Department, dated December 10, 2004, reversing the order of the lower court, which granted appellant’s motion to vacate his prior plea and sentence, and reinstating the judgment of conviction rendered by the Justice Court of the Town of Tuxedo, Orange County. On or about October 30, 2008, appellant pled guilty to aggravated driving while intoxicated (VTL §1192.2). By motion dated October 21, 2010, appellant sought to vacate his plea and by decision dated January 6, 2011, the Justice Court granted appellant’s motion. As stated in the Court’s return in ___________ * Page references preceded by A are to the Appendix on Appeal. 2 response to the prosecution’s assignment of errors, the plea was vacated because appellant’s waiver of counsel had not been knowingly or intelligently made. Defendant had vacillated on the issue of counsel and did not seem to understand the risks of appearing pro se (A12). The People appealed and Appellate Term reversed, holding that because adequate facts appeared in the record to evaluate the decision to allow appellant to proceed pro se, the only possible avenue of review was a direct appeal; as appellant failed to appeal, the motion to “withdraw” his guilty plea should not have been entertained, citing CPL §440.10(2)(c). People v. Grubstein, 37 Misc.3d 142 966 N.Y.S.2d 348 (App. Term 2012) (A3-6). This Court has jurisdiction pursuant to CPL §450.90 to entertain this appeal and review the questions raised. The Appellate Term's reversal of the lower court order raises two questions of law, each of which is within this Court's jurisdiction to review. The issue presented in Point I, whether the appellant’s failure to appeal was “unjustified”, thereby barring Article 440 relief, is preserved in that the issue was raised by the People in opposition to appellant’s motion (A31). Point II raises the issue of whether on the merits, appellant’s waiver of counsel was knowing where the court failed to make any inquiry into appellant’s understanding of the risks or his 3 ability to represent himself. This is was preserved in that it was part of the Justice Court’s return and presented to Appellate Term. Moreover, as the issue is apparent from the record, it can be raised for the first time on appeal. See People v. Kinchen, 60 N.Y.2d 772. QUESTIONS PRESENTED 1. Did the failure to take a direct appeal by a defendant whose waiver of counsel had been invalid and who was not advised of his right to appeal preclude a challenge to the conviction under CPL Art. 440? 2. Where the plea transcript clearly reflected a failure to determine that the defendant understood the risks of proceeding pro se, can the court conclude that the waiver of counsel had not been voluntary and grant appellant’s CPL Article 440 motion without conducting a hearing? 4 STATEMENT OF FACTS MOTION TO VACATE On or about October 30, 2008, appellant, Howard Grubstein, pled guilty to aggravated driving while intoxicated (VTL §1192.2). During the course of his plea, there was discussion as to whether appellant wished to secure counsel. Appellant was uncertain as to what representation would entail and ultimately declined counsel, but there was never any explanation of the risks of proceeding pro se or a determination that appellant understood those risks and wished to waive counsel nevertheless (A21). At the outset, the court simply advised appellant of his right to counsel and asked if he wished to adjourn the case to secure an attorney. Appellant declined (A14). However, as the matter became more complicated, appellant kept questioning what would take place. He asked about what would happen if he secured counsel, whether counsel would consult with him and whether counsel would appear on his behalf. The only response appellant was given was that whether counsel would consult with him or appear on his behalf was between him and counsel (A21-22). There was no explanation of the benefits of representation or the risks of appearing pro se. Indeed, appellant’s hesitation was so apparent that the prosecution suggested that the plea not be accepted and the court indicated it was going to decline the plea (A21). Appellant still wanted to proceed and while the court again 5 advised appellant of his right to counsel, there was no further explanation of the consequences of waiving counsel, the rights which appellant had if he chose not to plead guilty or an inquiry to ensure that appellant appreciated the dangers and disadvantages of proceeding pro se (A22). Appellant waived his right to counsel and pled guilty (A22). He was not advised of his right to appeal and did not appeal his conviction. By motion dated October 21, 2010, appellant moved to withdraw his guilty plea, asserting that when he pled guilty, he did not have counsel. He further asserted that he had not been advised that if convicted again, he would face felony charges, and finally, he alleged that he had not been advised, nor aware, of potential defenses, his right to challenge his arrest or his right to challenge any statements allegedly made by him (A25-27). In opposition, the prosecution argued that the plea issues were procedurally barred because appellant failed to appeal from the judgment and because the issues were apparent on the face of the record (A31-33). On the merits, the prosecution argued that the failure to inform the appellant of the collateral consequences of a guilty plea or his claim of potential defenses were substantively insufficient to warrant relief from the judgment. The prosecution failed to address appellant’s claimed lack of counsel. 6 DECISION By decision dated January 6, 2011, the court treated the motion as an application to vacate the judgment pursuant to CPL 440.10, granted the application and vacated the judgment (A7). AFFIDAVIT OF ERRORS Thereafter, the prosecution filed a notice of appeal and affidavit of errors, contending that the decision failed to comply with CPL §440.30(7), which required the court to set forth findings of fact and conclusions of law. In addition, the prosecution argued that appellant’s affidavit was insufficient to warrant a summary disposition (A8-11). Finally, the prosecution made the same substantive arguments as it had in opposition to the motion, that the failure to advise appellant of the collateral consequences of a plea and the existence of potential defenses to the charges were insufficient to warrant vacatur of the judgment. The prosecution failed to address the issue of appellant’s lack of counsel other than to note that the court encouraged appellant to adjourn the matter to speak to an attorney (A8-11). RESPONSE TO AFFIDAVIT OF ERRORS The court, in turn, filed a response to the prosecution’s affidavit of errors, explaining that a review of the October 30, 2008 plea and sentencing transcript made it evident that while appellant had been generally advised of the right to counsel, the 7 waiver had not been made knowingly or intelligently as appellant vacillated on the issue and did not seem to understand the risks of appearing pro se (A12). APPELLATE TERM DECISION The People appealed and the Appellate Term reversed (People v. Grubstein, 37 Misc.3d 142(A), 966 N.Y.S.2d 348). The court held that as there were adequate facts in the record to evaluate appellant's claims regarding the sufficiency of the plea allocution, he was required to take a direct appeal and having failed to do so, pursuant to CPL §440.10(2)(c), Article 440 relief was precluded (A5-6). The court further held that to the extent that appellant's claims were based on matters dehors the record, his motion was insufficient to require a hearing (A6). 8 ARGUMENT POINT I APPELLANT’S ARTICLE 440 APPLICATION WAS NOT BARRED AS HIS FAILURE TO TAKE A DIRECT APPEAL WAS NOT UNREASONABLE Although the Appellate Term held that any issue regarding appellant’s original plea could not be addressed under Article 440 as the record was sufficient to have allowed a direct appeal, the statutory bar to relief under Article 440 is for an “unjustifiable failure” to take a direct appeal. CPL §440.10(2)(c). If the failure is justifiable, the bar would not apply and an Article 440 application would be permitted. One example of when a failure to appeal is justifiable is when the defendant is unaware of the right or believes the appeal is being taken by counsel. Thus, in People v. Syville,15 N.Y.3d 391, 912 N.Y.S.2d 477 (2010), this Court held, at footnote 3, If a defendant was prevented from pursuing his direct appeal solely due to his attorney's noncompliance with a request to file a notice of appeal, the failure to raise the issue in question on direct appeal would be justifiable (see e.g. People v. Lard, 45 A.D.3d 1331, 846 N.Y.S.2d 495 [4th Dept.2007]). In People v. Lard, 45 A.D.3d 1331, 846 N.Y.S.2d 495 (4th Dept. 2007), cited in Syville, the court again concluded that the alleged failure of counsel to file a notice of appeal when directed to do would rendered the failure to appeal justified and that a hearing on the issue should have been held. 9 In People v. Hoffler, 74 A.D.3d 1632, 906 N.Y.S.2d 115 (3d Dept. 2010), the court held that where the same attorney represented the defendant at trial and on appeal, the failure to have raised that attorney’s ineffective assistance on direct appeal was not “unjustifiable”, allowing collateral review. People v. Maraj, 44 A.D.3d 1090, 845 N.Y.S.2d 134 (3d Dept. 2007), is on point. There, the court held, Nor are we persuaded by the People's assertion that defendant is precluded from raising the issue regarding his lack of counsel since he did not pursue a direct appeal. While it is settled that CPL 440.10 should not be “employed as a substitute for direct appeal” ( People v. Cooks, 67 N.Y.2d 100, 103, 500 N.Y.S.2d 503, 491 N.E.2d 676 [1986] ), where, as here, the issue involves a defendant who received no representation by counsel (including when entering the plea and thereafter during the time to take an appeal) and he is challenging his purported waiver of that constitutional right, a collateral attack on the judgment of conviction may be considered (see People v. Byroads, 24 A.D.2d 732, 733, 263 N.Y.S.2d 401 [1965]; see also People v. Silverman, 3 N.Y.2d 200, 202, 165 N.Y.S.2d 11, 144 N.E.2d 10 [1957]; cf. CPL 440.10[3][a] ). As in Maraj, appellant in the case at bar also contends that his waiver of the right to counsel was invalid. Pursuant to Maraj, that would be sufficient to avoid the consequences of the failure to appeal. Here, however there is more. Appellant, pro se, was not advised of his right to appeal, in violation of 22 NYCRR §671.5. which explicitly requires the trial court to advise a pro se defendant of his right to appeal and the right to assigned counsel upon qualification. 10 As stated by this Court in People v. West, 100 N.Y.2d 23, 759 N.Y.S.2d 437 (2003), when a State grants 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 forgone and that substantial legal and factual arguments are not inadvertently passed over” (Penson v. Ohio, 488 U.S. 75, 85, 109 S.Ct. 346, 102 L.Ed.2d 300 [1988]; see also People v. O'Bryan, 26 N.Y.2d 95, 308 N.Y.S.2d 830, 257 N.E.2d 19 [1970]; People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130 [1969] ). Thus, a State's processes must provide the criminal appellant with the minimal safeguards necessary to make an adequate and effective appeal (see Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 [2000] ). Thus, where appellant was deprived of his right to counsel and then was not advised of his right to appeal, as in the above cases, the failure to appeal is justified. Contrary to the Appellate Term’s conclusion, Article 440 relief was available. 11 POINT II AS THE TRIAL COURT FAILED TO PROPERLY ENSURE THAT APPELLANT UNDERSTOOD THE RISKS OF PROCEEDING PRO SE, APPELLANT’S WAIVER WAS INVALID AS A MATTER OF LAW AND HIS MOTION TO VACATE WAS PROPERLY GRANTED On the merits, the law is well settled that once appellant expressed an interest in the possibility of counsel, it was incumbent upon the court to make a full and searching inquiry to ensure that appellant understood the rights he was waiving and the dangers of proceeding pro se. People v. Mitchell, 61 N.Y.2d 580, 475 N.Y.S.2d 355 (1984), is on point. In Mitchell, this Court held, once a defendant has indicated an interest in counsel being assigned, the Trial Judge may not accept the defendant's subsequent waiver of right to counsel and plea of guilty unless the Judge has made an adequate inquiry of the defendant to determine whether the defendant understands the risks and consequences of his actions. Applying this basic rule, this Court concluded, on facts nearly identical to those at bar, So judged, we hold that the record before us does not support a finding that defendant's waiver of counsel was effective. Nowhere do we find in the record that the Town Justice made any precautionary inquiry to insure that defendant, in waiving counsel, appreciated the value of being represented by counsel and the difficulties and pitfalls of proceeding without one. All that the record discloses is that the defendant was informed by the Town Justice that he was entitled to be represented by counsel and that one would be appointed if he could not afford one. More than that was required to have an effective waiver of counsel. 12 As stated by this Court in People v. Crampe, 17 N.Y.3d 469, 932 N.Y.S.2d 765 (2011), that inquiry must be a searching one. To ascertain whether a waiver is knowing, voluntary and intelligent, a court must undertake a “searching inquiry” designed to “insur[e] that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel” (People v. Providence, 2 N.Y.3d 579, 582, 780 N.Y.S.2d 552, 813 N.E.2d 632 [2004] [internal quotation marks and citation omitted] (additional citations omitted). Clearly, that searching inquiry was lacking here and in fact, appellant was unsure of how he wanted to proceed. Moreover, the information appellant did receive was incorrect. Appellant was advised that counsel were assigned, it was between appellant and counsel as to whether counsel would consult with him and appear on his behalf (A18-19). In fact, if appellant chose to have counsel assigned, counsel would be obligated to do both. Appellant’s waiver of counsel was invalid. To the extent that the prosecution has argued that the trial court’s order was also defective due to its failure to set forth findings of fact, conclusions of law and reasons for the determination in accordance with CPL §440.30(7), the court’s subsequent explanation in response to the prosecution’s filing of an affirmation of errors should cure any purported defect. In its response, the court explained that the basis for its determination had been its review of the transcript of the plea and sentence which clearly revealed that defendant’s waiver of counsel had not been knowing and voluntary due to the complete lack of 13 inquiry by the trial court (A12). The court’s explanation was more than adequate to serve as findings of fact and conclusions of law and if, arguendo, the initial decision were deficient, the response was sufficient to satisfy the requirements of CPL §440.30(7). The prosecution also argued that the court erred in deciding the motion without a hearing. However, there was no request for a hearing and in fact, the prosecution argued at page 6 of its memorandum that the matter was appropriate for summary disposition. As such, any claim that a hearing should have been held was waived. In any event, contrary to the prosecution’s contention, the critical facts upon which the decision was based had not been contested. Appellant alleged that he proceeded without counsel and without advice as to the rights to which he would be entitled had he chosen not to plead guilty. The prosecution failed to dispute the substance of the allegations, and as such, with no factual dispute, and the transcript clear, the court properly determined the application without a hearing in accordance with CPL 440.30(3). The lack of inquiry into appellant’s decision to proceed pro se, the lack of explanation of appellant’s right to counsel (and the inaccurate explanation of what benefit retaining counsel would provide) and the failure to advise appellant of his right to appeal and the right to counsel in connection therewith rendered his waiver of counsel involuntary and deprived appellant of his 14 fundamental State and Federal constitutional rights to counsel and due process as guaranteed Sixth and Fourteenth Amendments to the United States Constitution and New York State Constitution Article 1, §6. The lower court order, vacating appellant’s plea should be reinstated. 15 CONCLUSION FOR THE FOREGOING REASONS, THE ORDER OF THE APPELLATE TERM SHOULD BE REVERSED AND THE JUSTICE COURT ORDER REINSTATED Respectfully submitted, RICHARD L. HERZFELD, P.C. Attorneys for Appellant ______________________ BY: RICHARD L. HERZFELD 104 W. 40 Streetth 20 Floorth New York, New York 10018 (212) 818-9019 Rherzfeld@herzfeldlaw.com