The People, Respondent,v.Robert Kordish, Appellant.BriefN.Y.Oct 8, 2013August 19, 2013 The Judges of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. Robert Kordish Queens County Indictment No. 12305/91 Submission Pursuant to Rule 500.11 Your Honors: The People submit this letter, pursuant to Section 500.11 of this Court’s Rules of Practice, in support of the affirmance of the August 4, 2009 decision and order of the Appellate Division, Second Department, dismissing defendant’s appeal to that court as abandoned. The record establishes that the Appellate Division correctly concluded that defendant exceeded the time set forth in the court’s rules for perfecting his appeal and the court thus properly dismissed the appeal without assigning counsel to represent defendant. Accordingly, the decision and order of the Appellate Division should be affirmed. FACTUAL AND LEGAL BACKGROUND On July 17, 1991, defendant and co-defendant Dennis Marhan sold cocaine to an undercover police officer. Defendant and co-defendant were thereafter arrested and subsequently charged under Queens County Indictment Number QN12305/91 with Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39). Following a non-jury trial, defendant was convicted in absentia of Criminal Sale of a Controlled Substance in the Third Degree, and, on June 17, 1992, was sentenced, People v. Robert Kordish Page No. 2 Indictment No. QN12305/91 in absentia, to an indeterminate prison term of from eight to sixteen years. On July 8, 1992,1 defendant’s trial counsel filed a Notice of Appeal on his behalf. Defendant disappeared for the next seventeen years. He was then incarcerated in Florida in 2009, and, on October 6, 2010, the People lodged a detainer with the Florida Department of Corrections. When he completed serving his sentence in Florida, defendant was returned to New York on the 1992 warrant, and, on May 22, 2012, the sentence was executed. On May 24, 2012, defendant filed a Notice of Appeal from the execution of sentence and moved for poor person relief and the assignment of counsel with regard to his appeal from the June 17, 1992 judgment of conviction. In a response dated June 26, 2012, the People opposed defendant’s motion, arguing that defendant’s request for poor person relief and the assignment of counsel was moot, as defendant’s appeal was deemed abandoned pursuant to 22 N.Y.C.R.R. 670.8(f), since defendant had failed to perfect his appeal within nine months of the date of the notice of appeal, and had not requested or received an enlargement of time in which to do so. Defendant filed a reply affirmation, dated July 12, 2012, in which he relied on Taveras v. Smith, 463 F.3d 141 (2d Cir. 2006) to argue that because his appeal had not yet been dismissed, the “fugitive dismissal doctrine”did not preclude his direct appeal. He also argued that whether his appeal should be dismissed pursuant to the “fugitive dismissal doctrine” was an issue to be decided as part of his appeal. On July 24, 2012, the Appellate Division, Second Department issued an Order to Show Cause which: (1) dismissed on its own motion the appeal from the execution of sentence and denied as academic the applications for further relief with regard to that appeal; and (2) directed defendant to show cause on or before August 23, 2012, why his appeal from the June 17, 1992 conviction should not be dismissed as abandoned. The court held his applications for poor person relief and the assignment of counsel with regard to the appeal in abeyance. Defendant filed an affirmation in response to the Court’s Order to Show Cause, dated August 15, 2012, in which he claimed that he had no knowledge that he was convicted2 Co-defendant Marhan was jointly tried with defendant and convicted of Criminal1 Facilitation in the Fourth Degree. He was sentenced to a six-month term of incarceration. Co- defendant Marhan did not file a Notice of Appeal. This affirmation was never served on the People. 2 People v. Robert Kordish Page No. 3 Indictment No. QN12305/91 and sentenced or that a Notice of Appeal was filed on his behalf. According to defendant, he was, therefore, “prevent[ed]” from perfecting his appeal. Defendant further argued that dismissal of his appeal would be “inappropriate” since he was amenable to the jurisdiction of the court, and that dismissing the appeal would deprive him of the opportunity to challenge his conviction and sentence, which he claimed was unduly harsh. Defendant did not request that the Court assign counsel to assist him in responding to the Order to Show Cause. In a Decision and Order dated August 30, 2012, the Appellate Division, Second Department granted the motion to dismiss defendant’s appeal as abandoned pursuant to 22 N.Y.C.R.R. 670.8(f), and denied defendant’s motions as academic. On April 2, 2013 the Court (Smith, J.) granted defendant leave to appeal. ARGUMENT The Appellate Division properly dismissed defendant’s appeal as abandoned pursuant to the mandatory provisions of 22 N.Y.C.R.R. 670.8(f). Defendant failed to comply with the court’s procedural rules regarding the timely perfection of his appeal and accordingly, the appeal was ultimately dismissed. Defendant was given proper notice, by way of Order to Show Cause, of the court’s motion to dismiss the appeal, and was given an opportunity to, and did, in fact, respond to that motion. Thus, the dismissal of defendant’s appeal did not violate defendant’s rights to due process or equal protection Defendant, however, relying on Taveras v. Smith, 463 F.3d 141 (2d Cir. 2006), claims that the court abused its discretion in dismissing his appeal without first appointing counsel, and that the motion to dismiss should have been decided as part of defendant’s direct appeal. Taveras, however, is not controlling because that appeal was dismissed as a matter of discretion under the “fugitive disentitlement doctrine,” which allows the court to consider the merits of the defendant’s case when determining if it should be dismissed. Here, in contrast, dismissal of defendant’s appeal was mandatory under the court’s rules and involved only a determination of whether defendant had complied with the court’s time limitation for perfecting his appeal, not a consideration of the merits of defendant’s case. Accordingly, the decision and order of the Appellate Division should be affirmed. The Appellate Division relied on its own procedural rules to dismiss defendant’s appeal as abandoned because defendant failed to comply with the Court’s requirement that a criminal defendant seek the assignment of counsel or perfect his appeal within nine months of the date of the Notice of Appeal. 22 N.Y.C.R.R. 670.8 (f). Dismissal under this rule is mandatory and does not involve a consideration of the merits of the appeal. People v. Robert Kordish Page No. 4 Indictment No. QN12305/91 Rather, the only relevant factor is whether or not defendant has acted in a timely manner. Pursuant to Judiciary Law § 85, each Appellate Division has the right to “provide rules as it may deem necessary generally to promote the efficient transaction of business and the orderly administration of justice.” Thus, each Appellate Division can make its own rules regarding the perfection and dismissal of criminal appeals. The rules of the Appellate Division, Second Department expressly provide that unperfected criminal appeals will be “deemed” abandoned if the defendant fails to meet certain deadlines. Thus, section 670.8(f) of the Court Rules states that, “an unperfected criminal appeal by a defendant shall be deemed abandoned in all cases where no application has been made by the defendant for the assignment of counsel to prosecute the appeal within nine months of the date of the notice of appeal, unless the time to perfect the appeal shall have been extended” (emphasis added). Dismissal of an appeal pursuant to this rule for the failure to comply with the Court’s procedures does not violate a defendant’s rights to due process or equal protection, so long as the defendant is given notice of the motion and an opportunity to respond. Brown v. Superintendent, 2011 U.S. Dist. Lexis 8683 *7-8 (E.D.N.Y. Jan. 28, 2011); MacKenzie v. Marshall, 2009 U.S. Dist. Lexis 104119 *10-11 (E.D.N.Y. Nov. 5, 2009); see also Bailey v. Conway, 2009 U.S. Dist. Lexis 131006 *19-20 (E.D.N.Y. July 2, 2009) (dismissal of an appeal without proper notice is a violation of the Due Process Clause). Here, defendant abandoned his appeal by failing to seek the assignment of counsel within nine months of the date of his notice of appeal, which was filed on July 8, 1992. Indeed, defendant did not move for the assignment of counsel until May 24, 2012, almost twenty years later. Therefore, because defendant failed to comply with the court’s procedural rules regarding timeliness, the Appellate Division properly “deemed” his appeal abandoned and moved to dismiss the appeal as untimely. The court gave defendant notice of the motion to dismiss and an opportunity to respond. Indeed defendant did, in fact, respond to the motion, but nevertheless failed to establish good cause for an extension of time in which to perfect his appeal. 22 N.Y.C.R.R. 670.8(d)(2). Accordingly, the Appellate3 In his response, defendant claimed that he was “prevent[ed]” from perfecting his appeal3 because he had “no knowledge of these proceedings” since the “conviction was obtained, sentence imposed, and notice of appeal was filed in his absence” (Defendant’s Affirmation in Opposition, p.1). However, defendant never claimed that he did not flee or that he was improperly tried and sentenced in absentia. Thus, as defendant willfully absconded prior to trial, he forfeited his right to be notified of his conviction and sentence, as well as of his right to appeal. People v. Sanchez, 65 N.Y.2d 436 (1985); People v. Epps, 37 N.Y.2d 343 (1975). People v. Robert Kordish Page No. 5 Indictment No. QN12305/91 Division’s dismissal of defendant’s appeal was proper and did not violate defendant’s constitutional rights. Defendant nevertheless contends that the Second Circuit’s holding in Taveras v. Smith, 463 F.3d 141 (2d Cir. 2006), mandates reversal of the Appellate Division’s order. But, because the appeal in Taveras was dismissed under the fugitive disentitlement doctrine, which requires a review of the merits of the appeal, and not on timeliness grounds, the holding in Taveras is inapplicable to defendant’s case. The defendant in Taveras was convicted and sentenced in absentia in 1988, and his attorney filed a timely Notice of Appeal on the defendant’s behalf. The defendant was returned on a warrant in 1997 and, on December 15, 1997, sentence was executed. On February 13, 1998, the defendant filed a motion for permission to file a late Notice of Appeal. That motion was denied and the defendant thereafter filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. During the pendency of that proceeding, the Notice of Appeal filed by counsel was discovered, and the defendant’s motion for permission to file a late Notice of Appeal was re-calendared by the court as a motion for poor person relief and the assignment of counsel. The People opposed the motion and moved to dismiss the appeal on the ground that the defendant had “abandoned his right to appeal by absconding, and that even if the timely-filed notice of appeal were valid, the First Department could have sua sponte dismissed his appeal ten years earlier by its own rules.” Taveras v. Smith, 463 F.3d at 144. The Court granted the People’s motion and dismissed the appeal, although it rejected the People’s argument concerning untimeliness. 4 The Federal Court subsequently granted the defendant’s petition for a writ of habeas corpus, finding that he had been denied his right to counsel on his appeal, and that his right to counsel was not lost simply because he had previously been a fugitive. Taveras v. Smith, 388 F.Supp.2d 256 (S.D.N.Y. 2005). The United States Court of Appeals for the Second Circuit affirmed. Taveras v. Smith, 463 F.3d 141. Framing the issue before the Court as “whether clearly established Supreme Court law prohibited the New York Appellate Division from dismissing [defendant’s] first-tier appeal on fugitive disentitlement grounds without appointing counsel and without providing a copy of any transcripts available and necessary for pursuing that appeal” (Id. at 146) (emphasis added), the Court concluded that the Supreme Court’s holding in Douglas v. California, 372 U.S. 353 (1963), guaranteeing a criminal defendant the right to counsel on his first appeal if the state provides such an Thus, in the subsequent proceedings, the parties assumed that the Appellate Division’s4 dismissal of the defendant’s appeal was based on New York’s fugitive disentitlement doctrine, rather than on the First Department’s procedural rules. Taveras v. Smith, 463 F.3d at 145. People v. Robert Kordish Page No. 6 Indictment No. QN12305/91 appeal as of right, extends to all cases where indigent defendants seek appellate review that involves some consideration of the “merits” and involves claims that have not yet been presented and ruled on by an appellate court. Id. at 147. Finding that dismissal of criminal appeals pursuant to the fugitive disentitlement doctrine was discretionary, not automatic, under New York law, the Court held that whether to exercise such discretion and dismiss an appeal on the ground that the defendant was previously a fugitive “is a ‘threshold issue’ to be decided in the disposition of a former fugitive’s first-tier appeal as of right. Id. at 149-50. 5 Defendant now relies on Taveras to support his claim that the Appellate Division erred in dismissing his appeal without first assigning counsel. Defendant is wrong. The holding in Taveras applies only to appeals dismissed pursuant to the fugitive disentitlement doctrine , not to those dismissed on timeliness grounds as was defendant’s. 6 Indeed, in Taveras, the People moved to dismiss the defendant’s appeal because the defendant “abandoned his right to appeal by absconding” Id. at 144. The determination of such a motion is discretionary and involves a consideration of a number of factors, including the merits of the case, the defendant’s degree of fault, and his fugitive status. Taveras v. Smith, 388 F.Supp.2d 256, 270-71, aff’d, 463 F3d at 149. Indeed, when dismissal is sought on fugitive grounds, “there might be some factual or legal dispute regarding the applicability” of the fugitive disentitlement doctrine that could only be pointed out by counsel on appeal. Id. at 270-71 Therefore, the Court held that “whether to exercise discretion and dismiss an appeal on fugitive disentitlement grounds . . . is a ‘threshold issue’ to be decided in the disposition of” the appeal. Taveras v. Smith, 463 F.3d at 150. On remand to the Appellate Division, counsel was appointed to represent the defendant and5 filed a brief on the defendant’s behalf. The People thereafter moved to dismiss the defendant’s appeal on the ground that he had forfeited and abandoned his appellate rights by absconding. The defendant opposed the motion. The Appellate Division granted that motion. This Court affirmed, finding that the Appellate Division had not abused its discretion in dismissing the appeal pursuant to C.P.L. § 470.60. People v. Taveras, 10 N.Y.3d 227, 231 (2008) Defendant’s assertion that the Second Circuit’s decision in Taveras did not involve an6 application of the fugitive disentitlement doctrine (Defendant’s brief, p. 3) is without merit. Indeed, as the Second Circuit’s decision makes clear, the defendant’s appeal was originally dismissed on fugitive disentitlement grounds because, as the People claimed, the defendant had “abandoned his right to appeal by absconding.” Taveras v. Smith, 463 F.3d at 144, 146. After the case was remanded to the Appellate Division and again dismissed, after counsel was appointed, the defendant appealed to this Court, which found that the second dismissal of the defendant’s appeal did not implicate the fugitive disentitlement doctrine. People v. Taveras, 10 N.Y.3d at 232. People v. Robert Kordish Page No. 7 Indictment No. QN12305/91 Here, while defendant had, like the defendant in Taveras, been a fugitive, unlike Taveras, defendant’s status as a former fugitive played no part in the dismissal of his appeal. Rather, defendant’s appeal was dismissed solely because defendant failed to comply7 with the Court’s timeliness requirements. Indeed, the Appellate Division’s Decision and Order clearly and specifically refers to 22 N.Y.C.R.R. 670.8(f) as a basis for the dismissal. Thus, the only issue before the court was whether the defendant complied with the court’s procedural rules regarding timeliness. This involved merely a straight-forward evaluation of how much time has elapsed since the Notice of Appeal was filed, and not a consideration of the merits of the case or of any other discretionary factors. Unlike a motion to dismiss under the fugitive disentitlement doctrine, there are no arguments for which counsel is required when the issue is the timeliness of the appeal. Indeed, when a defendant fails to comply with the court’s timeliness requirements, he is barred from raising any claims, including any claims regarding the applicability of the fugitive disentitlement doctrine. In fact, since Taveras was decided, other courts in the Second Circuit have upheld the dismissal of appeals for the failure to comply with the court’s procedural rules regarding the timely perfection of appeals. See Brown v. Superintendent, 2011 U.S. Dist. Lexis 8683; MacKenzie v. Marshall, 2009 U.S. Dist. Lexis 104119. Thus, because defendant’s appeal was dismissed pursuant to the mandatory provisions of 22 N.Y.C.R.R. 670.8(f), and not the discretionary provisions of the fugitive disentitlement doctirne which require an evaluation of a number of factors, including the merits of the appeal, the holding in Taveras is not applicable to defendant’s case. See Kelly v. Ercole, 2008 U.S. Dist. Lexis 60203 (E.D.N.Y. Aug. 6, 2008) (because dismissal of appeal was automatic and mandatory based on defendant’s failure to file a timely notice of appeal, defendant was not entitled to counsel). The holding now sought by defendant – reversal of the Appellate Division’s order dismissing his appeal as untimely – would require an unreasonable extension of Taveras by requiring that counsel be appointed in all cases where either the People or the Court move to dismiss a defendant’s appeal. Indeed, the filing of a Notice of Appeal is, for all intents and purposes, pro forma. Cautious defense counsel will routinely file a Notice of Appeal, even if the defendant has pled guilty and validly waived his right to appeal. Such large numbers of pending appeals can create a tremendous administrative problem for the To the extent that defendant’s failure to timely move for the appointment of counsel or7 perfect his appeal was due to the fact that he was a fugitive and thus allegedly did not know about the conviction or the notice of appeal (see Defendant’s August 15, 2012 affirmation in opposition to the Court’s motion to dismiss, ¶ 1), Taveras is still not controlling. Indeed, defendant waived his right to be informed of his conviction or his right to appeal by absconding. People v. Sanchez, 65 N.Y.2d 436 (1985); People v. Epps, 37 N.Y.2d 343 (1975). People v. Robert Kordish Page No. 8 Indictment No. QN12305/91 appellate courts. Accordingly, appellate courts may, pursuant to the Judiciary Law, set time limits and make rules regarding the perfection and dismissal of appeals. Mandating that counsel be appointed each time either the People or an appellate court seek to dismiss8 appeals that have already been deemed abandoned or which are otherwise untimely, whether by motion or by dismissal calendar, would frustrate the efforts of the appellate courts to control their case loads by weeding out appeals that defendants have no serious intent to pursue. Taveras does not require that counsel be appointed every time a motion is made to dismiss an appeal as untimely or unperfected pursuant to the court’s rules, and it should not now be extended to require that counsel should routinely be appointed under such circumstances. In sum, the Appellate Division properly dismissed defendant’s appeal pursuant to 22 N.Y.C.R.R. 670.8(f) because defendant failed to comply with the court’s procedural rules regarding timeliness. The court provided defendant with notice of the motion to dismiss and an opportunity to respond. The court was not required to appoint counsel to represent defendant prior to moving to dismiss his appeal. The Second Circuit’s holding in Taveras is limited to those cases where an appeal is dismissed under the fugitive disentitlement doctrine and should not be extended to every case in which either the People or the court move to dismiss appeals that are deemed abandoned pursuant to the court’s rules and which are otherwise untimely. Therefore, the August 4, 2009 Decision and Order of the Appellate Division dismissing defendant’s appeal should be affirmed. Sincerely, John M. Castellano Assistant District Attorney (718) 286-5801 cc: Diane V. Bruns, Esq. Schlather, Stumbar, Parks & Salk, LLP 200 East Buffalo Street P.O. Box 353 Ithaca, NY 14851 Following this Court’s recent decision in People v. Cantave, 2013 N.Y. Lexis 1633 (June8 25, 2013), prohibiting the People from cross-examining a defendant about a prior conviction that is still pending on appeal, the People have a strong motive to seek to dismiss unperfected appeals.