The People, Respondent,v.Howard Grubstein, Appellant.BriefN.Y.October 16, 2014OFFICE OF THE ORANGE COUNTY DISTRICT ATTORNEY LOCAL CRIMINAL COURT UNIT 18 SEWARD AVENUE, MIDDLETOWN NEW YORK 10940 TEL, 845615 3640 FAx’ 845346 1189 wwworangecoL nygovcom FRANCIS D PHILLIPS II District Attorney RICHARD E RUGGERI Cnief Assistant District Attorney October 17, 2013 Hon. Andrew Klein Clerk of the Court Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: People v Howard Grubstein APL No. 2013-00205 Dear Mr. Klein: By permission of a Judge of this Court (Read, 1) in an order dated July 26, 2013, Howard Grubstein appeals from a Decision and Order of the Appellate Term, 9th and 10th Judicial Districts, which reversed an Order of the Town of Tuxedo Court and denied the defendant’s motion to vacate the judgment of conviction rendered on December 10, 2012 (People v Grubstein, 37 Misc. 3d 142(A) [App Term gth and 10th Jud Dists. 2012]). By a letter dated August 19, 2013, this Court directed submissions pursuant to 22 NYCRR 500.11. For reasons more fully set forth below, the decision and order of the Appellate Term should be affirmed in its entirety. The background facts to the defendant’s matter are easily stated. On October 30, 2008, the defendant, who was charged with aggravated driving while intoxicated and driving while intoxicated in violation of VTL §1192[2-a] and 1192[3j, 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. 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 violations of VTL §1192[2-a] and 1192[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 himself pro 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. The People opposed the defendant’s motion on procedural and substantive grounds. The Justice Court, Town of Tuxedo (Brown, J.) construed the defendant’s motion as a motion to vacate the judgment and summarily granted the motion, based upon its review of the motion papers, opposition papers, and transcripts from the plea and sentencing proceedings. 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[7j, 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. The Appellate Term agreed and reversed the trial court’s order and denied the motion to vacate judgment. The Appellate Term found that “[t]o the extent that adequate facts appeared in the record to evaluate certain of defendant’s claims regarding the sufficiency of the plea allocution, the only possible avenue of review was a direct appeal ...,“ and “[tjo the extent that defendant’s claims are based on matters dehors the record, his motion failed to assert matters of fact sufficient to require a hearing . . . On appeal to this Court, defendant argues that the decision to permit him to proceed PtQ se was defective, and that, as an unrepresented defendant in the trial court proceedings, his claims should not be barred from 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 defendant’s 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 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. The seminal decision interpreting the mandatory provisions of CPL 440. 10[2][c] is PeoDle v Cooks (67 NY2d 100 [19861), 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” (Id. at 103-104; see also Peotle v Cuadrado, 9 NY3d 362, 364-365 [20071; PeoDle V Deciondea, 3 AD3d 148, 156-157 [2003], hi 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, hi denied, 65 NY2d 694 [1985])(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); ‘ Subsequent to the Appellate Term’s reversal, defendant pleaded guilty to the felony charge and was sentenced to five years probation. 2 People v Berezansky, 229 AD2d 768, k denied, 89 NY2d 919 [1996]). Thus, in recognition of the legislative intent found in the language in contained in CPL 440. 10[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, 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( Peoole v Cooks, 67 NY2d at 101; Peocle v Cuadrado, 9 NY3d at 365; People v Ancielakos, 70 NY2d 670 [1987]; People v Hillrieciel, 78 AD3d 1381 [2010]; People v Acevedo, 104 AD3d 610 [2013]; People v Chiu Mei Lan Kwok, 51 AD3d 814, 815 [2008]; People v Lagas, 49 AD3d 1025 [2008]). 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. 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 440.10[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. 10[2][c] does not apply to unrepresented defendants. Both arguments should be rejected. As a threshold matter, defendant’s arguments concerning the denial of the right to counsel are unpreserved for appeal. 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 se in the trial court proceedings. Yet, the fact that a defendant represents himself se 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. 10[2][c] as a result of his status. Moreover, defendant never claimed or pleaded facts that explained his “unjustifiable failure” to raise his claims on direct appeal. Thus, defendant’s arguments, which he raised 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 People v McGann, 186 AD2d 392 [19921; People v Gayle, 168 AD2d 201 [1990]; People v AlIen, 196 AD2d 876 [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 appeal 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. 10[2][c] and the underlying core principle that the CPL 440.10 procedure is not available as a substitute for a direct appeal ( People v Cooks, 67 NY2d at 103; People v Cuadrado, 9 NY3d at 364-365). The primary objective of judicial 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 words chosen by the Legislature 3 and the plain meaning they express (McKinney’s Cons. Laws of NY, Book 1, Statutes 94; see 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[2][cj 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 ( People v Cooks, 67 NY2d 101-103; 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 ( also People v Acedevo. 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 “[a]s long as those rules give a defendant a fair opportunity to vindicate his rights, they should be enforced. CPL 440. 10[2][c] is 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[2]{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 claims that the trial court erroneously permitted him to proceed se without making the proper inquiry, is itself a matter of record that can be raised for the first time on direct appeal ( People v Crampe, 17 NY3d 469 [20111; 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. 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; People v Angelakos, 70 NY2d at 672-673; People v Cuadrado, 9 NY3d at 365; People v Lacias, 49 AD3d 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 Hociue, 62 AD3d 410 [2008])(defendant not entitled to raise PRS error by way of a CPL 440.10 motion because the error is clear from the existing record). Indeed, defendant’s arguments addressed to the counsel issue are presented no differently from those addressed to the same issue 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 that can 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 4 was afforded complete retroactivity on collateral review by the United States Supreme Court ( Solem 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 coram nob/s( People v Corso, 40 NY2d 578, 580 [1976]). Thus, under the modern Criminal Procedure Law, the power of a trial court to vacate a 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 [1991]). 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 ( 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 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 appeal). Accordingly, the older authority cited by defendant in Howard as well as in the Third Department’s decision in People v Maral (44 AD3d 1090 [2007]) was effectively overruled by the enactment of CPL 440.10 (see 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 caselaw cited by defendant decided prior to the enactment of CPL Article 440). Defendant’s reliance on People v Maraj is also misplaced for two other reasons. Importantly, less than two years after Maraj was decided the Third Department effectively disavowed its holding in Maral, finding that nearly identical claims were procedurally barred ( 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. 10[3][a] with the provisions contained in CPL 440.10[2][c]. Unlike CPL 440.10[2][c], CPL 440.10[3][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. 10[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 (see People v Agero, 234 AD2d 94 [1996]; People v Michael, 16 Misc 3d 84, 86 [2007]; People v Forbes, 191 Misc 2d 573 [2002])(all recognizing that a trial court lacks the authority to grant vacatur in the interests of justice). 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 5 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. 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][c] exist ( 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[2][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 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 himself p 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 ( 67 NY2d at 103- 104). In 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 himself p ( Faretta v California, 422 US 806 [19751; 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, he was not without a remedy that might have subsequently afforded him the ability to pursue a direct appeal ( CPL 460.30; see also People v Svville, 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 himself p. The terms necessarily refer to some other external factor, such as state interference, that arbitrarily prevented the 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 ( Pace v DiGuglielmo, 544 US 408 [2005]; Holland v Florida, 560 US , 130 SCt 2549 [2010]). Here, the record is clear that defendant never pursued either a direct appeal or any other post-judgment appellate remedies. Defendant has also never shown, much less even claimed, that he was, in fact, 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 6 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 himself p se, 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 Swille 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 (see 15 NY3d at 401 n. 3). The Court’s discussion was entirely unnecessary to its decision. The interpretation of the applicability of CPL 440.10[2][cJ was not before the Court and was in no way central to the holding. Consequently, the statement constituted jça. More fundamentally, the very rational for the Court’s statement and the decision in People v Lard (45 AD3d 1331 [2007]) that was cited by the Court was effectively overruled or negated by the Svville 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. 10[2][c] without first seeking that relief in the Appellate Division. The failure to adopt such a reasonable interpretation of CPL 440.10[2][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 [20101). 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 reviewing appellate court with its separate role as the court of original jurisdiction to review a claim of ineffective assistance of appellate counsel ( 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 (see People v Finnegan, 85 NY2d 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 7 distinctions between a direct appeal and post-judgment relief pursuant to CPL 440.10.2 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 440.10[2][c] 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 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 (I±). 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 [2013])(expressly declining to extend retroactive relief on collateral review). In short, a defendant like Grubstein who insisted on representing himself 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 supporting affidavit was legally insufficient to raise a factual issue to warrant a hearing. The trial court also 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 [1999]; People v Carter, 280 AD2d 977 [2001]; People v Pierre, 80 AD3d 441 [2011]). In fact, as an indispensible element to the felony charge, defendant was deemed to have notice of that fact, irrespective of the whether the trial court made him aware of that fact 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]). Finally, defendant’s unsubstantiated claim of a possible defense to the charges was likewise legally insufficient to grant relief( People v Jones, 44 NY2d 76 [1978]). 2 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. 10[2][c] ( CPL 470.35[1j; People v Concepcion, 17 NY3d 192, 195 [2011]). 8 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.3 Very truly yours, FRANCIS D. PHILLIPS, II DISTRICT ATTORNEY ELIZABETH L. SCHULZ Assistant District Attorney ANDREW R. KASS Executive Assistant District Attorney Qf Counsel cc: Richard Herzfeld, Esq. For Defendant Howard Grubstein On appeal, the People also claimed that the trial court’s order failed to comply with the procedural requirements mandated by CPL 440.30[7] ( People v Williams, 184 AD2d 608 [1992]). 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. 9 COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, Respondent AFFIRMATION CERTIFYING DIGITAL SUBMISSION - against - HOWARD GRIJBSTEIN, Appellant. x STATE OF NEW YORK ) ss.: COUNTY OF ORANGE ) I, Elizabeth L. Schulz, an Assistant District Attorney in the Office of Francis D. Phillips, II, 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 letter 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 October 17, 2013 ELIZABETH L. SCHULZ Assistant District Attorney COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, AFFIDAVIT OF SERVICE Respondent, -against-- APPEAL NO. 2013-00205 HOWARD GRUBSTEIN, Appellant. x STATE OF NEW YORK: ss.: COUNTY OF ORANGE: The undersigned, being duly sworn, says: I am not a party to the action, am over 18 years of age and reside in Orange County, New York. That on October 17, 2013, I served one (1) copy of the annexed RESPONDENT’S LETTER BRIEF in PEOPLE V. HOWARD GRUBSTEIN by depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons below at the last known address set forth after each name: RICHARD HERZFELD, ESQ. 104 w. 40th STREET, 20th FLOOR NEW YORK, NEW YORK 10018 (The name signed must be printed beneath) CAROL M. BARNES Sworn to before me this 17th day of October, 2013. ELIZABETH L SCHULZ Notary Public, State of New Yor1.Notary Public No. 02SC6209351 Qualified in Orange County Commission Expires July 27,2017