The People, Respondent,v.Robert Kordish, Appellant.BriefN.Y.October 8, 2013"\ ;... SCHLATHER, STUMBAR, PARKS & SALK, LLP AITORNEYS AT LAW RAYMOND M. SCHLATHER L. RICHARD STUMBAR JAMES A. SALK DAVID MAKOTO PARKS DIANEV. BRUNS Hon. Andrew M. Klein Clerk of the Court New York Court of Appeals 20 Eagle Street 200 EAsT BUFFALO STREET P.O. BOX353 ITHACA, NEW YORK 14851 TELEPHONE (607) 273-2202 FACSIMILE (607) 273-4436 (NOT FOR SERVICE OF PROCESS) www.ithacalaw.com July 5, 2013 Albany, New York 12207-1095 Re: People v. Robert Kordish APL-2013-00085 Dear Mr. Klein: MICHAEL LoPINTO (1915-1987) MARTIN A. LUSTER. OF COUNSEL Associates JEFFREY D. WALKER EUZABETH M. ALDRIDGE This letter constitutes the appellant's submission pursuant to Rule 500.11(c) of the Rules of this Court. FACTS AND PROCEDURAL HISTORY On May 17, 1992, appellant Robert Kordish was convicted in absentia,. after a bench trial, of criminal sale of a controlled substance in the third degree and sentenced on June 17, 1992, also in absentia, to an indeterminate term of eight to sixteen years' imprisonment. Mr. Kordish's trial counsel filed a Notice of Appei;)l on his behalf on July 8, 1992, of which Mr. Kordish was unaware. In 2009, Mr. Kordish was incarcerated in the state of Florida and was at that time advised of the existence of an active warrant for his arrest issuing out of Queens County, New York. The Florida authorities provided proper notice of Mr. Kordish's whereabouts to New York; however, the Queens County authorities failed either to execute the warrant or lodge a detainer. Mr. Kordish himself subsequently filed a motion in Supreme Court, Queens County, to begin the process of resolving the situation created by the outstanding warrant. On October 6, 2010, the Queens County District Attorney's Office lodged a detainer with the Florida Department of Corrections. Upon completion of his Florida sentence, Mr. Kordish was returned to New York on the 1992 warrant on May 21, 2012, and the sentence executed. On May 24, 2012, Mr. Kordish (1) filed a Notice of Appeal from the execution of sentence (denominated in that document as the "judgment of conviction") entered May 21, 2012 and (2) applied to the Appellate Division, Second Department, for poor person relief and the assignment of counsel in connection with his appeal from the judgment entered on June 17, 1992. The People opposed the application on the ground that the appeal had been abandoned pursuant to 22 NYCRR 670.8(f), which, the District Attorney stated, provides that "an appeal is deemed abandoned if a defendant fails to perfect his criminal appeal within nine months of the date of the notice of appeal, unless he is granted an enlargement of time. "1 The District Attorney argued that, as Mr. Kordish had not perfected his appeal within the mandated time, and no extension had been granted, his requests for poor person relief and assignment of counsel were moot. In response, Mr. Kordish pointed out that his appeal had in fact not yet been dismissed, and contended that, because fugitive status does not preclude a direct appeal, the dismissal issue was to be decided as part of the disposition of his appeal as of right. He further contended that a failure to appoint counsel in this connection would constitute a violation of his constitutional right to counsel pursuant to the determination of the Second Circuit in Taveras v Smith ( 463 F3d 141 [2nd Cir 2006]). 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 in connection with that appeal, and (2) directed the appellant to show cause why an order should not be made dismissing the appeal dated June 17, 1992, on the basis that he had abandoned the appeal, further directing him to file an affirmation or affidavit in response on or before August 23, 2012, and holding in abeyance his applications for poor person relief and assignment of counsel. Appellant filed an affidavit in response (labeled an affirmation) dated August 15, 20122, in which he argued that as he had had no knowledge of his 1992 conviction and sentence, or that a Notice of Appeal therefrom had been filed in 1992, he had no knowledge that an appeal was pending; accordingly, he had been in effect prevented from perfecting that appeal. He contended that dismissal of the appeal would deprive him of the opportunity of contesting both the legality of his conviction and the arguably harsh and disproportionate sentence imposed for what he described as "a small street-level sale with an arguable agency defense." On August 30, 2012, the Second Department issued a Decision and Order on Motion granting the motion to dismiss the appeal as abandoned and denying the appellant's motion for poor person relief and assignment of counsel as academic; a copy of this Decision and Order is attached hereto. On April 2, 2013, a judge of this Court granted appellant leave to appeal; the appeal was subsequently placed on the SSM track. 1 Although CPL 470.60 permits an appeal to be dismissed for "failure of timely prosecution or perfection thereof," the rule cited by the People and by the Appellate Division as the ground for dismissal provides that an unperfected criminal appeal "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," a distinction that may be become relevant and important in the ultimate determination of this appeal, given appellant's allegation that he was unaware of his conviction and of the filing of a notice of appeal during the relevant time period. 2 Respondent District Attorney states in its letter opposing appellant's motion for leave to appeal that ~'[d]efendant did not file a response" to the Appellate Division's Order to Show Cause; this statement is Inaccurate. 2 ARGUMENT The primary issue presented on this appeal is whether the Appellate Division, Second Department, abused its discretion in dismissing Mr. Kordish's appeal from the 1992 judgment of conviction. Although CPL 470.60 expressly authorizes the appellate divisions to dismiss appeals without reaching their merits, the statutory language provides that the appellate court "may, upon motion of the respondent or upon its own motion, dismiss such appeal upon the ground of ... failure of timely prosecution or perfection thereof ... " In other words, despite the Second Department rule set out in 22 NYCRR § 670.8{f) 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,"· a dismissal is not mandated but remains an exercise of the court's broad discretion. This Court's analysis and determination in People v Taveras (10 NY3d 227 [2008]) and the holding of the United States Court of Appeals for the Second Circuit in Taveras v Smith ( 463 F3d 141 [2"d Cir 2006]) compel reversal of the Appellate Division Order here. People v Taveras, and its companion case People v Jones, addressed the question whether long-pending appeals should be permitted to proceed in two cases where the defendants had failed to appear for trial, had been convicted and sentenced in absentia, and had been returned to New York after a significant passage of time. In each case, a timely notice of appeal had been filed, but no effort either to perfect or to dismiss the appeal had been made during the time the defendant was a fugitive. In each case, the defendant attempted to prosecute his pending appeal upon his return, and in each case the appellate division granted a dismissal of the appeal, subsequently affirmed by this Court.3 The ·determinative factor differentiating appellant's case from those of the defendants in Taveras and Jones is that, in each of those cases, the appellate division had appointed counsel to represent the defendant with respect to the question whether his appeal ought to be dismissed. Especially relevant to the within appeal, the Taveras appeal was before the Appellate Division following several years of litigation, including a federal habeas corpus proceeding. That habeas corpus proceeding culminated in the holding of the United States Court of Appeals for the Second Circuit that, in a case in which the fugitive disentitlement doctrine did not apply, a fugitive returned to state custody during the pendency of a first- tier state appeal of right was entitled to counsel in connection with the state court's determination whether to exercise its discretion to dismiss that appeal. See Taveras v Smith, 463 F3d at 151. As that court noted, the Appellate Division could have considered the appeal on its merits, or dismissed it; either result was within that court's discretion. However, the Appellate Division, in failing to assign counsel to the defendant as he had requested -- assuming that he satisfied the indigency requirements -- deprived the defendant of his well-established constitutional right to counsel in connection with his pending first-tier appeal, as set out in the rulings of the United States Supreme Court in cases such as Evitts v Lucey (469 US 387 [1985]) and Coleman v Thompson (501 US 722 [1991]), including as part of that appellate process the determination of the threshold 3 It appears that in People v Jones the Appellate Division had in fact appointed appellate counsel upon the defendant's initial application, and therefore that case did not present the threshold right to counsel issue found in People v Taveras. Taveras and Jones were joined for consideration by this Court on the common issue of what constitutes the proper exercise of the Appellate Division's discretion to dismiss a pending appeal after a fugitive defendant has returned to New York State. 3 ·" :.-.·1 issue whether his appeal should be dismissed. The Second Circuit directed that Taveras be released from custody unless his direct appeal to the Appellate Division was reinstated and appellate counsel assigned. The court concluded that "[t]he New York courts remain free, thereafter, to consider whether dismissal of Taveras' appeal on grounds of his previous flight is, under New York law, appropriate (emphasis in original)." Id. at 152. However, assignment of counsel was a precondition to the Appellate Division's a exercise of its discretionary authority whether to dismiss a pending first-tier appeal as of right. Upon the return of the case to the Appellate Division, First Department, that court assigned Taveras appellate counsel, and then heard argument on the merits of the People's motion. to dismiss the appeal on the basis that, by fleeing, Taveras had forfeited his right to an appeal. Upon the Appellate Division's subsequent dismissal of the appeal, a justice of the Appellate Division granted Taveras leave to appeal to this Court. This Court affirmed that the determination whether a pending appeal in such circumstances ought to be permitted to proceed is an exercise of the broad discretion of the appellate division pursuant to CPL 470.60(1), and set out the principles that ought to guide the exercise of that discretion - that is, in the words of the Second Circuit, how to determine whether a dismissal grounded in the defendant's previous flight would be appropriate in a particular case. This Court held that the Appellate Division may consider whether the defendant's flight " caused 'a significant interference with the operation of [the] appellate process (Ortega-Rodriguez v United States, 507 US 234, 250 [1993])," and various other factors, including any prejudice that would accrue to the People in permitting the appeal to go forward. Taveras, 10 NY3d at 233. Because the respective Appellate Divisions in Taveras and in Jones had considered the appropriate factors and concluded that the People had in each case established the requisite prejudice, the Appellate Division orders dismissing those appeals were affirmed by this Court. However, no such process was followed here. Although Taveras was handed down by this Court in 2008, the Appellate Division here ignored its mandate when dismissing appellant's appeal in 2012, without providing appellant with counsel in connection with that proceeding. Moreover, although secondarily, it does not appear that the People's submissions to that court even raised any of the considerations prescribed by this Court on such a determination, much less established the requisite prejudice - indeed, the People made no submission at all in connection with the Order to Show Cause underlying the dismissal - and there is no evidence in the Appellate Division's terse dismissal order that the court ever considered them. But it is the failure to assign appellate counsel to Mr. Kordish in the first instance that compels a reversal. The right to counsel on a first-tier appeal as of right includes the appointment of counsel to litigate the initial question whether the appeal should be dismissed for a failure timely to perfect or prosecute. As this Court has recently affirmed in People v Ventura (17 NY3d 675, 681 [2011]}, while acknowledging the broad authority of the intermediate appellate courts to dismiss appeals, this discretionary power cannot be accorded such an expansive view as to curtail defendants' basic entitlement to appellate consideration. As a matter of fundamental fairness, all criminal defendants shall be permitted to avail themselves of intermediate appellate courts as "the State has provided an absolute right to seek review in criminal prosecutions" (Montgomery, 24 NY2d at 132). 4 And, pursuant to Taveras v Smith, supra, that right of appellate review includes assignment of appellate counsel, including assignment of counsel for any proceeding on the threshold issue whether a defendant's appeal should be dismissed. Given the clearly established constitutional right of a defendant to have counsel on an initial appeal of right, the Appellate Division here in the first instance abused its discretion - broad though that discretion may be - in dismissing Mr. Kordish's appeal as abandoned without assignment of appellate counsel. Finally, the People in their submission to this Court in opposition to appellant's application for leave to appeal contend that appellant has failed to preserve the right to counsel issue. The People first allege that appellant did not reply to the Appellate Division's Order to Show Cause, which is inaccurate; appellant filed a response dated August 15, 2012, included in the papers filed on this appeal. Next, the People contend that the right to counsel issue was somehow rendered unpreserved by appellant's failure to explicitly repeat his request for counsel in responding to the Order to Show Cause. Preservation of an issue for this Court's review is grounded in whether that issue has been presented to the lower courts, not whether it has been reiterated in connection with every procedural step in that court. In any event, there is an exception to the preservation requirement where, as here, the claimed error is a violation of a criminal defendant's fundamental rights, including the right to counsel. See, e.g., People v Carmine A. (53 NY2d 816 [1981]). Accordingly, this Court should reverse the Order of the Appellate Division, Second Department dismissing appellant's appeal to that court, reinstate the appeal and remit the matter for further proceedings, and, pursuant to Taveras v Smith, direct the appointment of appellate counsel in connection with those proceedings. DVB/wp En c. cc: Merri Turk Lasky, Esq. Assistant District Attorney Respectfully yours, ~t/.~ Diane V. Bruns, Esq. Attorney for Appellant 5 ( .. -.. r"'"·, I : ·· ...•.. 05-24-'13 10:13 FROM- NYS Court oi Appeals 518-455-7890 T-278 P0009/0026 F-312 .§upr.e.~ Qtnurt nftl}.e ~tau nf N.etu iDrk l\pptllatt. iJ'tuisiuu~·;jJ.ecnnll ilubitial i.epartmtnt WILLIAM F. MASTRO, A.P .J. RANDALL T. BNG PLUMNIER E. LOTI JEFFREY A. COHEN, JJ. 1992-04914 M142903 J/sl The People, etc., respondent~ v Rob~rt Kordish, appellant. DECISIQN ·& 0RDBR:·ON··MOTION (Ind. No. 12305/91) :txfotioQ. by the appellant pro se for leave to prosecute an appeal from a judgment of the Supreme Court,. Queens County,renderedJune 17, 1992, as apoorpersonandfortheassigrunent of counsel. By order to show cause dated July 24, 2012, the appellant was directed to show cause before this Court why an order should or shoul(i,not be made and entered dismissing the appeal on the ground that"he had abandoned the appeal, and the appellant's motion was held in abeyance in the interim. · . · Upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the appellant's motion and the p~pers filed in opposition thereto, it is ORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed (see 22 NYCRR 670.8[f]); a.nrl it i~ further) · ORDERED that the appellant's motion is denied as acade;nic. MASTRO, A.P.J., ENG, LOIT and COHEN, JJ., concur. August 30, 2012 ENTER: ~------~~ Aprilanne Agostino Clerk of the Com1 PEOPLE v KORDISI-I, ROBERT