The People, Respondent,v.Ivan Calaff, Appellant.BriefN.Y.February 20, 2014APL-2013-00259 To be argued by DAVID E. A. CROWLEY (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - IVAN CALAFF, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov DAVID M. COHN DAVID E. A. CROWLEY ASSISTANT DISTRICT ATTORNEYS Of Counsel JANUARY 13, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 QUESTIONS PRESENTED .............................................................................................. 5 STATEMENT OF THE CASE .......................................................................................... 7 POINT I AS THIS COURT MADE CLEAR IN PEOPLE V. WEST, 100 N.Y.2d 23 (2003), AND AS THE LEGISLATURE MADE CLEAR BY ENACTING CPL 470.60(1), THE APPELLATE DIVISION HAD DISCRETION TO DISMISS DEFENDANT’S APPEAL FOLLOWING HIS UNJUSTIFIED, 19-YEAR DELAY. .................... 17 POINT II DEFENDANT’S CHOICE OF COUNSEL CLAIM IS NOT PROPERLY RAISED IN THIS APPEAL. IN ANY EVENT, THERE IS NO RECORD SUPPORT FOR DEFENDANT’S UNPRESERVED CLAIM THAT THE TRIAL COURT VIOLATED HIS RIGHT TO COUNSEL OF HIS CHOICE ................................................................... 50 CONCLUSION ................................................................................................................... 65 -ii- TABLE OF AUTHORITIES FEDERAL CASES Baker v. Kaiser, 929 F.2d 1495 (10th Cir. 1991) ............................................................ 45-46 Barker v. Wingo, 407 U.S. 514 (1972) ................................................................................... 25 Estelle v. Dorrough, 420 U.S. 534 (1975) .......................................................................... 30-31 Goeke v. Branch, 514 U.S. 115 (1995) .............................................................................. 30-31 Halbert v. Michigan, 545 U.S. 605 (2005) ........................................................................ 40-43 Restrepo v. Kelly, 178 F.3d 634 (2d Cir. 1999) ...................................................................... 47 Taveras v. Smith, 463 F.3d 141 (2d Cir. 2006) ............................................................... 30, 44 United States v. McMahon, No. 04-5011, 2005 WL 115506 (10th Cir. 2005) ................... 45 Vermont v. Brillon, 556 U.S. 81 (2009) ................................................................................. 25 West v. Breslin, No. 60 Civ. 4167, 2008 WL 110947 (S.D.N.Y. Jan. 2, 2008), aff’d, 410 F. App’x 393 (2d Cir. 2011), cert. denied, 132 S. Ct. 371 (2011) .............................................................................. 40, 44 STATE CASES Ghaffari v. N. Rockland Cent. Sch. Dist., 23 A.D.3d 342 (2d Dep’t 2005) ......................... 60 Hardial v. City of New York, 195 A.D.2d 295 (1st Dep’t 1993) ........................................ 60 People v. Acevedo, 17 N.Y.3d 297 (2011) .............................................................................. 28 People v. Alexander, 97 N.Y.2d 482 (2002) .......................................................................... 23 People v. Bautista, 7 N.Y.3d 838 (2006) ................................................................................ 53 People v. Brown, 40 N.Y.2d 381 (1976) ................................................................................. 53 People v. Calaff, 21 N.Y.3d 911 (2013) ................................................................................... 4 People v. Calaff, 30 A.D.3d 193 (1st Dep’t 2006) ................................................................ 11 People v. Calaff, 7 N.Y.3d 810 (2006) ................................................................................... 11 -iii- People v. Callahan, 80 N.Y.2d 273 (1992)....................................................................... 30, 53 People v. Coppa, 45 N.Y.2d 244 (1978) ................................................................................. 53 People v. Fetcho, 91 N.Y.2d 765 (1998) ................................................................................. 53 People v. Frederick, 45 N.Y.2d 520, 525 (1978). ................................................................... 23 People v. Gray, 21 A.D.3d 1398 (4th Dep’t 2005) ............................................................... 56 People v. Griffin, 20 N.Y.3d 626 (2013) ................................................................................ 58 People v. Hall, 200 A.D.2d 474 (1st Dep’t 1994) ................................................................ 37 People v. Hunter, 17 N.Y.3d 725 (2011) ......................................................................... 29, 38 People v. Jackson, 78 N.Y.2d 638 (1991) .......................................................................... 23-24 People v. Johnson, 69 N.Y.2d 339 (1987) ............................................................................... 37 People v. Jones, 55 N.Y.2d 771 (1981) ................................................................................... 59 People v. Kinchen, 60 N.Y.2d 772 (1983) ...................................................................... 6, 61-62 People v Knowles, 88 N.Y.2d 763 (1996) ............................................................................... 61 People v. Kordish, 22 N.Y.3d 922 (2013) .............................................................. 40-41, 44-45 People v. Lopez, 71 N.Y.2d 662 (1988) ................................................................................. 23 People v. Lynn, 28 N.Y.2d 196 (1971) ............................................................................ 25, 48 People v. McLean, 15 N.Y.3d 117 (2010) .............................................................................. 63 People v. Mirenda, 57 N.Y.2d 261 (1982) .............................................................................. 24 People v. Ozuna, 7 N.Y.3d 913 (2006) .................................................................................. 34 People v. Park, 60 A.D.3d 972 (2d Dep’t 2009) .................................................................. 60 People v. Parris, 4 N.Y.3d 41 (2004) ..................................................................................... 27 People v. Ramos, 85 N.Y.2d 678 (1995) ................................................................................ 53 People v. Rivera, 71 N.Y.2d 705 (1988) ................................................................................. 64 -iv- People v. Samuels, 49 N.Y.2d 218 (1980) .............................................................................. 59 People v. Smith, 44 N.Y.2d 613 (1978) ................................................................................. 31 People v. Syville, 15 N.Y.3d 391 (2010) ................................................... 19, 29, 37-38, 46-47 People v. Taveras, 10 N.Y.3d 227 (2008) ..........................................................................passim People v. Thomas, 47 N.Y.2d 37 (1979) ................................................................................. 19 People v. Tineo, 64 N.Y.2d 531 (1985) ......................................................................... 6, 55-59 People v. Ventura, 17 N.Y.3d 675 (2011).............................................................................. 53 People v. West, 100 N.Y.2d 23 (2003) ..............................................................................passim STATE STATUTES 22 N.Y.C.R.R. § 600.8(b) ............................................................................................... 13, 20 22 N.Y.C.R.R. § 600.12(c)(2) ......................................................................................... 48-49 22 N.Y.C.R.R. § 600.12(c)(3) .............................................................................................. 48 22 N.Y.C.R.R. § 600.12(c)(4) .............................................................................................. 48 22 N.Y.C.R.R. § 606.5(b) ..................................................................................................... 22 CPL 440.10 ............................................................................................................................ 34 CPL 440.30(4)(d) .................................................................................................................. 33 CPL 450.10 ............................................................................................................................ 18 CPL 460.10(1)(a) ................................................................................................................... 19 CPL 460.30 ............................................................................................................................ 20 CPL 460.30(1) ....................................................................................................................... 19 CPL 460.70(1) ....................................................................................................................... 20 CPL 460.70(3) ....................................................................................................................... 20 CPL 470.35 ............................................................................................................................ 54 -v- CPL 470.35(1) ....................................................................................................................... 54 CPL 470.35(2) ....................................................................................................................... 54 CPL 470.60 .............................................................................................................................. 5 CPL 470.60(1) ..................................................................................................................passim CPL 470.60(2) ....................................................................................................................... 21 CPL 470.60(3) ....................................................................................................... 5, 21, 50-54 Judiciary Law § 85........................................................................................................... 20, 48 Judiciary Law § 297 .............................................................................................................. 24 Penal Law § 70.04(3)(b) ................................................................................................. 26, 28 Penal Law § 70.04(4) ............................................................................................................ 26 Penal Law § 140.25 .............................................................................................................. 1-2 Penal Law § 140.25(2) ........................................................................................................ 2, 8 Penal Law § 265.02(4) ............................................................................................................ 9 OTHER AUTHORITIES Div. of Crim. Justice Servs., Criminal Justice Statistical Report (May 2012), available at http://goo.gl/zEEtwA .................................................................................................. 47 Peter Preiser, Commentaries, McKinney’s Cons. Laws of N.Y., Book 11A, CPL 460.10 ............................................................................................................................... 19 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- IVAN CALAFF, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Victoria A. Graffeo, defendant Ivan Calaff appeals from a February 19, 2013 order of the Appellate Division, First Department, which unanimously dismissed defendant’s appeal from a March 24, 1993 judgment of the Supreme Court, New York County (Harold Rothwax, J., at plea and sentencing). By that judgment, defendant was convicted, upon his plea of guilty, of Attempted Burglary in the Second Degree (Penal Law §§ 110.00, 140.25) and sentenced as a second violent felony offender to an indeterminate prison term of three to six years. Defendant has completed that sentence and is currently incarcerated pursuant to a separate judgment. On January 14, 1993, a resident of New York County came home to her apartment and discovered defendant and his co-defendant, William Martinez, in her -2- bedroom; she had not given either of them permission to be there. Defendant and Martinez fled, and a police officer apprehended defendant minutes later carrying jewelry and cash that he had stolen from the apartment. Martinez was also apprehended in the vicinity, and he too was carrying items that had been taken from the apartment. By New York County Indictment Number 524/93, filed on January 27, 1993, a grand jury charged defendant and Martinez with one count each of Burglary in the Second Degree (Penal Law § 140.25[2]). On February 24, 1993, defendant appeared before the Honorable Harold Rothwax without his assigned counsel, who had failed to appear or offer any explanation for his absence. Following an off-the-record discussion, the court assigned new counsel, without objection. Later that day, defendant entered a plea of guilty to attempted second-degree burglary (Penal Law §§ 110.00, 140.25) in full satisfaction of the indictment. In exchange for the plea, the court promised defendant that he would be sentenced as a second violent felony offender to three to six years in prison. On March 24, 1993, Justice Rothwax adjudicated defendant a second violent felony offender and sentenced him as promised.1 1 On February 24, 1993, Martinez pleaded guilty to attempted second-degree burglary in exchange for a promise of an indeterminate prison sentence of one to three years; on March 24, 1993, the Honorable Harold Rothwax sentenced him as promised. According to the records of the District Attorney’s office, Martinez did not appeal his conviction. -3- At the conclusion of the sentencing proceeding, defense counsel handed defendant written instructions indicating the steps defendant could take to perfect his appeal. In addition, counsel filed a timely notice of appeal. Defendant, however, served his sentence in full and took no action on his appeal. In 2000 and 2004, defendant was convicted of committing new crimes. On both occasions, defendant raised no objection when his sentence was enhanced because of the instant 1993 conviction. Subsequently, in 2008, defendant wrote two letters to the attorney who represented him during his plea and sentencing in 1993. Neither of those letters made reference to an appeal. In 2012, aided by new counsel, defendant sought to resurrect his appeal from his 1993 conviction, moving for permission to proceed as a poor person on appeal. The People opposed defendant’s motion and moved to dismiss the appeal for “failure of timely prosecution or perfection thereof,” CPL 470.60(1), citing the 19-year delay between defendant’s sentence and his motion for poor person’s relief. While the People’s dismissal motion was pending, defense counsel filed a merits brief, arguing that the plea court had infringed defendant’s right to counsel of choice when it replaced his assigned attorney. The Appellate Division initially denied the People’s motion to dismiss, “without prejudice,” pending full briefing and argument (M-3028; 2012 NY Slip Op 80175[U] [July 31, 2012]). Following oral argument, the Appellate Division, in a unanimous decision, dismissed the appeal “on the ground of ‘failure of -4- timely prosecution or perfection’” (A2). The Appellate Division did not address defendant’s right-to-counsel claim. Defendant sought leave to appeal to this Court, which the Honorable Victoria A. Graffeo initially denied on April 30, 2013. See People v. Calaff, 21 N.Y.3d 911 (2013). Defendant moved for reconsideration and, on September 6, 2013, Judge Graffeo granted defendant’s application for leave to appeal. On appeal to this Court, defendant contends that the Appellate Division abused its discretion by dismissing his appeal for failure to prosecute following defendant’s unexcused, 19-year delay. In addition, defendant argues that the trial court erred as a matter of law when it assigned new counsel, without any objection from defendant, when defendant’s previously-assigned attorney inexplicably failed to appear in court. -5- QUESTIONS PRESENTED 1. Defendant pleaded guilty in 1993 in exchange for a deal that offered him a reduced charge and a lenient sentence. At the sentencing hearing, defense counsel gave defendant a written notice explaining his right to appeal. In particular, the written notice explained the steps that defendant needed to take in order to obtain poor person’s relief and assignment of counsel for appeal. Despite receiving the notice, defendant took no action on his appeal for 19 years. The Appellate Division, First Department, dismissed defendant’s appeal on the ground of failure of timely prosecution and perfection. Did the Appellate Division have discretion to dismiss defendant’s appeal, pursuant to CPL 470.60, for failure to prosecute, where defendant inexcusably waited 19 years after his conviction to seek assignment of counsel and to file an appellate brief? See People v. West, 100 N.Y.2d 23, 26-28 (2003). 2. Section 470.60(3) of the CPL provides that if the Appellate Division dismisses an appeal for failure to prosecute, the scope of this Court’s review is limited to whether “the dismissal was invalid as a matter of law or … constituted an abuse of discretion.” Further, CPL 470.60(3) empowers this Court only to either “affirm or reverse” the dismissal order. Should defendant nevertheless be permitted to argue, on appeal from the Appellate Division’s dismissal order, that his guilty plea should be set aside due to trial court’s allegedly improper decision to substitute counsel? -6- 3. When defendant’s assigned counsel inexplicably failed to appear for the first calendar call following defendant’s Supreme Court arraignment, the trial judge held a conference off the record and then, without objection, relieved defendant’s assigned attorney and appointed new counsel. Defendant pleaded guilty after conferring with his new attorney and never raised any complaint about his new attorney’s representation. Under People v. Tineo, 64 N.Y.2d 531, 535-36 (1985), must defendant’s newfound claim—raised 19 years later—that that the trial judge impermissibly interfered with his right to counsel be rejected as unpreserved? Further, even if preserved, must defendant’s right-to-counsel claim be rejected as unreviewable because no record evidence suggests that defendant wanted to keep his original attorney and, in fact, defendant had good reason to want new counsel to be assigned? See People v. Kinchen, 60 N.Y.2d 772, 773-74 (1983). -7- STATEMENT OF THE CASE2 In 1993, defendant burglarizes an apartment. He pleads guilty to the lesser charge of attempted burglary and is advised of his appellate rights, but he makes no effort to perfect his appeal. On January 14, 1993, defendant and co-defendant William Martinez unlawfully entered an apartment on Claremont Avenue in Manhattan (PA1 [Felony Complaint]). There, they stole cash and jewelry. When the resident of the apartment came into her bedroom and discovered them, defendant and Martinez “ran out” of the apartment, heading in different directions (id.). About 10 minutes later, defendant and Martinez were arrested in separate locations, a few blocks away from the crime scene (PA3 [People’s Voluntary Disclosure Form (“VDF”): 1]). Both men were identified by the resident during in “show-up” identifications at the scene (PA4 [VDF: 2]). Defendant and Martinez were each in possession of some of the resident’s jewelry, and defendant was found in possession of $185.22 in cash, which he had taken from the apartment (PA1 [Felony Complaint]; PA2-3 [property vouchers attached to VDF]). 2 References preceded by “A” are to the Defendant’s Appendix, and those preceded by “PA” are to the People’s Supplemental Appendix. Internal notations to “P1” and “P2” refer respectively to the minutes of the first and second calendar calls of defendant’s February 24, 1993 plea proceeding, and “S” refers to the minutes of defendant’s March 24, 1993 sentencing proceeding. -8- Defendant and Martinez were jointly charged with second-degree burglary (PA11-12 [Indictment]). See Penal Law § 140.25(2). On February 24, 1993, defendant appeared before the Honorable Harold Rothwax and pleaded guilty to the lesser charge of attempted-second degree burglary, in full satisfaction of the indictment. In exchange for the guilty plea, the court promised defendant that he would be sentenced, as a second violent felony offender, to an indeterminate prison term of three to six years (A11, 16-18 [P2: 5, 10-12]).3 One month later, defendant appeared before Justice Rothwax for sentencing (A21 [S: 1]). The court adjudicated him a second violent felony offender and sentenced him as promised (A23-26 [S: 3-6]). In addition, at the sentencing hearing, Justice Rothwax instructed defendant’s attorney to “advise [defendant] of his Appellate rights and advise me that you have done so” (A26 [S: 6]). Counsel responded, “Let the record reflect I am handing my client written notice of his right to appeal, which indicates th[e] steps he can take to perfect that appeal” (id.). On April 15, 1993, defendant’s attorney timely filed a notice of appeal (A35 [Notice of Appeal). Defendant, however, took no action on his appeal. 3 Further details of the February 24, 1993, calendar call, which are relevant to defendant’s right-to-counsel claim, are discussed in Point II, infra. -9- Following his release from prison, defendant is convicted of new crimes in 2000 and 2004. On both occasions, he declines to dispute the validity of his 1993 conviction, which serves as a predicate felony. Defendant makes no reference to an appeal from the 1993 conviction. In 2000, defendant pleaded guilty to a new criminal charge of bail jumping (A73 [Def. Aff. in Opp. to Mot. to Dismiss (hereinafter “Calaff Aff.”) ¶ 12]). During the plea proceeding, defendant was adjudicated a second felony offender based on his instant 1993 conviction of attempted second-degree burglary. Defendant declined to challenge the constitutionality of the 1993 conviction, and he made no mention of any ongoing appeal from that conviction (PA29-30 [3/27/2000 Tr. at 10-11]). Subsequently, in 2004, defendant was convicted of another charge of second- degree burglary (A73 [Calaff Aff. ¶ 13]). On September 30, 2004, defendant appeared for sentencing with counsel (PA31-47 ([9/30/2004 Tr.]). The People sought to have defendant adjudicated a persistent violent felon based on a 1992 weapon-possession conviction and the instant 1993 conviction for attempted second-degree burglary (PA38-39 [9/30/2004 Tr. at 8-9]).4 While defendant disputed the 1992 conviction (a dispute that was resolved against him) (PA39-43 [9/30/2004 Tr. at 9-13]), he raised no challenge to his 1993 conviction. The court sentenced defendant, as a persistent 4 In 1992, defendant pleaded guilty to third-degree criminal possession of a weapon (Penal Law § 265.02[4]) in exchange for a promised sentence of five years of probation. On March 3, 1992, the court sentenced defendant to the promised probationary term (PA17-20 [3/3/92 Tr.]). After the court pronounced sentence, counsel reported that he was “handing [defendant] written notice of his right to appeal” (PA19-20 [id. at 3-4]). -10- violent felony offender, to an indeterminate prison term of 16 years to life (PA42, 47 [9/30/2004 Tr. at 12, 17]). On October 5, 2004, defendant filed a pro se notice of appeal from the September 30, 2004 judgment (PA48 [Notice of Appeal (Oct. 5, 2004)]).5 Defendant also prepared a pro se letter stating that he was indigent and requesting an appellate attorney and transcripts (PA50 [Letter from defendant to the Appellate Division, First Department (Oct. 16, 2004)]). In response to defendant’s letter, the Appellate Division supplied a form affidavit that could be used for requesting poor-person’s relief and assignment of counsel, and defendant filled out the paperwork and submitted it to the court (PA53 [Letter from the Appellate Division, First Department to defendant (Oct. 20, 2004); PA59-61 [Def.’s Aff. in Supp. of Mot. to Proceed as a Poor Person (Oct. 28, 2004)]). The Appellate Division granted defendant’s motion, assigning the Center for Appellate Litigation to represent defendant on appeal from his 2004 conviction. People v. Calaff, M-5045, Ind. No. 2579/03 (Dec. 9, 2004). Defendant’s counsel filed an appellate brief. In addition, defendant obtained permission to file a pro se supplemental brief (PA62-66 [Def.’s Mot. to File a Supp. Brief (Aug. 14, 2005)]). People v. Calaff, M-4573, Ind. No. 2579/03, 2005 N.Y. App. Div. LEXIS 9318 (Sept. 5 Defendant submitted, pro se, a second notice of appeal on October 19, 2004 (PA52 [Notice of Appeal (Oct. 19, 2004]). -11- 22, 2005). The Appellate Division affirmed defendant’s 2004 conviction, rejecting counsel’s arguments and defendant’s pro se contentions. People v. Calaff, 30 A.D.3d 193 (1st Dep’t 2006). Defendant’s appellate counsel applied for leave to appeal to this Court, and defendant obtained this Court’s permission to supplement counsel’s arguments with a pro se submission (PA67-68 [Letter from defendant to Clerk’s Office, Court of Appeals (July 13, 2006)]; Letter from Marjorie S. McCoy, Deputy Clerk, Court of Appeals, to defendant (July 21, 2006)]). On August 15, 2006, a Judge of this Court (Judith S. Kaye, C.J.) denied defendant’s leave application. People v. Calaff, 7 N.Y.3d 810 (2006). In 2008, defendant writes letters to his attorney seeking information about his 1993 conviction but makes no mention of an appeal. On May 19, 2008, defendant wrote to the Legal Aid Society requesting a copy of the case file from his 1993 conviction (A79 [Letter from the Legal Aid Society to defendant (Aug. 15, 2008)]). In response, the Legal Aid Society told him to direct his inquiries to the attorney who had represented him during the 1993 proceedings (id.). Defendant then wrote two letters to Bruce Klang, the attorney who had represented him at his plea and sentencing proceedings in 1993. In the first letter, defendant forwarded a copy of the 1993 plea minutes and shared his own recollection of events that had occurred on and off the record (A80-81 [Letter from defendant to Bruce Klang (Sept. 9, 2008)]). In that regard, defendant recalled that he had initially “adamantly refused to accept” a plea offer with a prison sentence of two-and-one-half -12- to five years but, after “some serious convincing” from the attorney, had “reluctantly agreed to accept the plea” (A80 [id. at 1]). Defendant also remembered that, when Justice Rothwax had informed him that the plea offer actually called for a prison term of three to six years, a “heated debate” had ensued between defendant and counsel because defendant had “refused to budge” from a deal involving two-and-one-half to five years (A81 [id. at2]). After recounting these and other details, defendant asked his attorney, “Basically what I need from you is an acknowledgement that you do or don’t recall what transpired on the above date, and if it is possible, please tell me what you recall in your own words” (id.). Defendant also requested “a complete copy of my trial folder” (id.). After approximately two months passed without a reply from the attorney, defendant re-sent his first letter and again requested that the attorney share his recollections and “a copy of my entire case file” (A82 [Letter from defendant to Bruce Klang (Nov. 12, 2008)]). Defendant’s letters made no reference to an appeal from the 1993 conviction. In 2012, defendant tries for the first time to perfect his appeal from his 1993 conviction. The Appellate Division dismisses defendant’s appeal for failure to timely prosecute it. On May 8, 2012, an attorney from the Center for Appellate Litigation, which had represented defendant on appeal from his 2004 conviction, sought to resurrect defendant’s long-dormant appeal from his 1993 conviction. Specifically, the attorney moved to be assigned as defendant’s counsel and sought permission for defendant to -13- proceed as a poor person on appeal (A31-33 [Aff. in Supp. of Mot. to Proceed as Poor Person Upon Appeal (May 8, 2012)]). In support of the motion, counsel affirmed that defendant was unfamiliar with the process for taking an appeal, that he had informed his attorney in 1993 that he wished to appeal his conviction, and that an ensuing conversation with the attorney convinced defendant that the attorney would take all necessary steps to perfect the appeal (A32 [id. at 2]). In response, the People noted that they intended to move to dismiss the appeal for failure to prosecute, citing, inter alia, CPL 470.60(1) and 22 N.Y.C.R.R. § 600.8(b), and therefore opposed defendant’s request for permission “to litigate the merits of the appeal” (A41-43 [Aff. in Opp. to Def.’s Mot. for Poor Person’s Relief ¶ 6 (June 15, 2012)]). However, the People took no position “with respect to granting defendant poor person’s relief for the limited purpose of litigating the issue of whether his appeal should be dismissed” (A42 [id. ¶ 5]). By papers dated June 19, 2012, the People moved to dismiss defendant’s appeal for failure to timely prosecute it (A45 [Not. of Mot. to Dismiss Appeal (June 19, 2012)]; A46-55 [Aff. in Supp. of the People’s Mot. to Dismiss (June 19, 2012)]). The People pointed out that defendant had failed to exercise any diligence with respect to his appeal during the 19-year period between 1993 and 2012. The People added that, if defendant were to succeed in overturning his guilty plea, he would gain a windfall as a result of his delay because a trial would be nearly impossible in light of witnesses’ fading memories (id.). The People added that it had not been determined whether -14- their key witness, the resident of the burglarized apartment, remained available to testify (A52 [id. ¶ 13]). By papers dated July 5, 2012, defendant opposed the People’s motion to dismiss (A56-58 [Aff. in Opp. to People’s Mot. to Dismiss (Jul. 5, 2012)]; A59-66 [Mem. of Law (July 5, 2012)]; A70-78 [Calaff Aff.]). In an attached affidavit, defendant asserted that, at the time of his 1993 sentencing, he was “completely unfamiliar with the appeals process”; that he did not know “exactly what an appeal was,” what it “entailed,” or the applicable deadlines; and that his plea attorney failed to inform him that there were “forms [he] would need to fill out” “in order for [his] appeal to move forward and to have an attorney assigned to [his] case” (A71-72, 76 [Calaff Aff. ¶¶ 4, 6, 7, 22]). Defendant acknowledged that he had reviewed the sentencing minutes and therefore knew that the lawyer had handed him a notice explaining the right to appeal, but defendant did “[n]ot recall being given this notice” (A71 [id. ¶ 5]). In addition, defendant averred that, after he was sentenced, he asked his attorney, “What happens now about the appeal thing you mentioned?” (A72 [Calaff Aff. ¶ 8]). According to defendant, his attorney responded, “Don’t worry about that, I’ll take care of it” (id.). Defendant averred that he took counsel’s statement “to mean that he would do [defendant’s] appeal and that [defendant] did not need to do anything further” (id.). -15- Defendant admitted that, despite counsel’s alleged promises, he never heard from his attorney again (A72 [Calaff Aff. ¶ 9]). Defendant acknowledged, too, that he made no efforts to contact his attorney in the years following his conviction (A72, 77- 78 [id. ¶¶ 9, 22]). Defendant claimed that he first learned about the appellate process following his 2004 conviction (see A73 [id. ¶ 13), at which point he “began to wonder whether [his] 1993 case really had been appealed” (A74 [id. ¶ 14]). Still, he did not reach out to his attorney from the 1993 case (A74 [id.]). Defendant averred that after his 2008 letters to his attorney went unanswered, he “did not know what else to do or who[m] else to contact about the case” (A75 [id. ¶¶ 16-19]). When, in 2012, defendant wrote to the Center for Appellate Litigation, his present appellate counsel visited him and commenced the process for perfecting his 1993 appeal (A76-77 [id. ¶¶ 20-22]). Defendant insisted that he had not abandoned his 1993 appeal, reiterating that his lawyer had led him to believe that “he would take care of” it (A76-77 [id. ¶ 22]). While the People’s motion to dismiss was pending, defendant’s appellate counsel filed a merits brief, arguing that prior to defendant’s 1993 guilty plea, the trial judge had improperly relieved his assigned counsel and appointed new counsel. On July 31, 2002, the Appellate Division denied the People’s dismissal motion “without prejudice to argument in respondent’s brief” (M-3028; 2012 NY Slip Op 80175[U] [July 31, 2012]). -16- On February 19, 2013, following full briefing and oral argument, the Appellate Division unanimously dismissed defendant’s appeal pursuant to CPL 470.60(1), “on the ground of ‘failure of timely prosecution or perfection’” (A2-3). At the outset, quoting People v. West, 100 N.Y.2d 23, 26 (2003), the Appellate Division observed that the right to appeal “is a statutory right that must be affirmatively exercised and timely asserted” (A2). The Appellate Division rejected defendant’s “attempt[ ] to explain his failure to follow the instructions he received at sentencing,” finding that defendant’s allegations were “refuted by the sentencing minutes and otherwise without merit” (A3). Therefore, after considering “the relevant factors” that this Court identified in People v. Taveras, 10 N.Y.3d 227, 233 (2008), the Appellate Division exercised its “discretionary authority” to dismiss the appeal (A2).6 Defendant applied for leave to appeal that decision to this Court, which the Honorable Victoria A. Graffeo granted on September 6, 2013 (A1). 6 The Appellate Division did not address defendant’s right-to-counsel claim. -17- POINT I AS THIS COURT MADE CLEAR IN PEOPLE V. WEST, 100 N.Y.2d 23 (2003), AND AS THE LEGISLATURE MADE CLEAR BY ENACTING CPL 470.60(1), THE APPELLATE DIVISION HAD DISCRETION TO DISMISS DEFENDANT’S APPEAL FOLLOWING HIS UNJUSTIFIED, 19-YEAR DELAY (Answering Defendant’s Brief, Point I). Defendant pleaded guilty to attempted second-degree burglary in 1993 as part of a favorable plea deal. Although counsel filed a notice of appeal and gave defendant written instructions that explained how to perfect his appeal, defendant took no action on his appeal for 19 years. In the interim, defendant not only completed his prison sentence, but he was convicted of two new crimes, in 2000 and in 2004. On both of those occasions, defendant’s 1993 conviction was used to enhance his sentences. And on both of those occasions, defendant declined to challenge the constitutionality of his 1993 guilty plea and made no mention of an appeal. Indeed, in 2008, when defendant wrote to his attorney in an attempt to obtain his 1993 file, defendant made no reference to an appeal. In 2012, after having accepted the validity of his 1993 conviction for 19 years, defendant tried to resurrect his long-dormant appeal. Defendant claimed, for the first time, that his right to choice of counsel had been violated during the 1993 plea proceeding. In an attempt to justify the delay in bringing his appeal, defendant alleged that his trial attorney had promised, off the record, to perfect the appeal on his behalf. Defendant admitted, however, that he had made no efforts to ascertain the status of -18- his appeal in the 19 years since his conviction. Exercising the authority granted by Section 470.60(1) of the CPL, and citing this Court’s relevant precedents, the Appellate Division dismissed defendant’s appeal “on the ground of ‘failure of timely prosecution or perfection’” (A2), finding that the record refuted defendant’s explanation for the delay. On appeal to this Court, defendant argues that the Appellate Division abused its discretion “as a matter of law” by dismissing his appeal (Defendant’s Brief at 21). This claim lacks merit. As the Criminal Procedure Law and Court’s precedents make clear, the Appellate Division had discretionary authority to dismiss defendant’s appeal due to his lengthy delay. Further, as the Appellate Division found, defendant’s excuse for his 19-year delay was incredible on its face and was at odds with the record. Indeed, defendant failed to exercise any diligence in perfecting his appeal, much less due diligence, in the 19 years following his conviction. If the Appellate Division is found to have abused its discretion as a matter of law by dismissing defendant’s appeal under these circumstances, defendant’s dilatory tactics would be rewarded, and deadlines governing the perfection of appeals could never be enforced. A. Of course, the Legislature has granted criminal defendants the right to appeal their convictions to an intermediate appellate court. CPL 450.10. As “a statutory right,” however, the right to appeal “must be affirmatively exercised and timely -19- asserted.” People v. West, 100 N.Y.2d 23, 26 (2003). Simply put, “a defendant who is properly informed of his appellate rights may not let the matter rest and then claim he did not waive the right to appeal.” Id. In that regard, a defendant’s right to appeal is conditioned upon compliance with specific rules. For example, the defendant must, within 30 days of the imposition of sentence, file a written notice of appeal. CPL 460.10(1)(a). A defendant who has not filed a notice of appeal within the 30-day deadline may seek permission to file a late notice, but only if the delay did not result from his lack of diligence, and only if he files the motion for an extension within one year of his initial default. CPL 460.30(1). The failure to comply with this procedural requirement deprives the appellate court of jurisdiction and results in a forfeiture of the defendant’s appellate rights. See, e.g., People v. Thomas, 47 N.Y.2d 37, 43 (1979) (“strict construction” of appellate procedural requirements “is appropriate since the time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them”); see also Peter Preiser, Commentaries, McKinney’s Cons. Laws of N.Y., Book 11A, CPL 460.10 (Noting that the time limits for filing and serving a notice of appeal “should be strictly observed” by appellants).7 7 A defendant may seek coram nobis relief if his attorney failed to file a notice of appeal despite the defendant’s timely request. See People v. Syville, 15 N.Y.3d 391 (2010); see also Thomas, 47 N.Y.2d at 44 (holding that prosecutor was estopped from asserting that defendant’s notice of appeal was not timely filed where prosecutor’s failure to respond to the Appellate Division’s requests for information “lulled the defendant, and apparently the (Continued…) -20- Further, the Legislature has granted the Appellate Division authority to promulgate rules governing, among other things, “when the appeal must be noticed for and brought to argument, the content and form of the records and briefs to be served and filed, and the time when such records and briefs must be served and filed.” CPL 460.70(1); see also Judiciary Law § 85 (granting authority to Appellate Division with respect to “making up calendars” and rules that “it may deem necessary generally to promote the efficient transaction of business and the orderly administration of justice”).8 Pertinent here, the rules of the Appellate Division, First Department, provide—and provided at the time of defendant’s judgment—that criminal appeals “must be brought on for argument within 120 days after the last day in which a notice of appeal was required to be filed, unless the time to perfect the appeal is enlarged by the court or a justice thereof.” 22 N.Y.C.R.R. 600.8(b) (McKinney’s 1993). The Criminal Procedure Law authorizes appellate courts to dismiss appeals that were not properly or timely perfected. Specifically, CPL 470.60(1) provides that “[a]t any time” before an appeal is determined, the appellate court may, either on respondent’s or its own motion, “dismiss such appeal upon the ground of … failure ______________________ (…Continued) Appellate Division, into falsely accepting the appeal as properly brought”). Absent such a showing of ineffective assistance of counsel or prosecutorial malfeasance, however, a defendant has no recourse from the one-year time limit of CPL 460.30. 8 The Legislature has granted similar rule-making authority to this Court. CPL 460.70(3). -21- of timely prosecution or perfection thereof, or other substantial defect, irregularity or failure of action by the appellant with respect to the prosecution or perfection of such appeal.”9 Critically, the Appellate Division enjoys “broad discretion” in deciding whether to dismiss an appeal based on an appellant’s failure to perfect in a timely fashion. People v. Taveras, 10 N.Y.3d 227, 233 (2008). This Court may reverse the Appellate Division’s dismissal order only if it “was invalid as a matter of law or … constituted an abuse of discretion.” CPL 470.60(3). B. Applying these standards, the Appellate Division properly exercised its broad discretion by dismissing defendant’s appeal because of his 19-year delay in perfecting it. Indeed, this Court’s decision in People v. West, supra, controls this case. In West, this Court affirmed an order of the Appellate Division, First Department, dismissing an appeal where the defendant had waited 14 years before moving for poor person’s relief. 100 N.Y.2d at 24-26. This Court noted that, in accordance with the First Department’s rules, the defendant’s trial counsel had given him written notice explaining how to obtain poor person’s relief and perfect his 9 Dismissal can occur only upon “reasonable notice to the appellant and with opportunity to be heard,” and the statute specifies the manner of service of a dismissal motion. CPL 470.60(2). There is no dispute that, here, defendant received notice of the People’s dismissal motion and an opportunity to be heard. -22- appeal.10 Nevertheless, the defendant had bypassed his direct appeal in favor of seeking federal habeas corpus relief, and he continued to eschew the state appellate process even when federal courts instructed him to exhaust his direct state appeals. Id. at 27. Thus, this Court declared, “[w]hile defendant was adequately informed of his right to appeal, he failed to perfect it in a timely manner and therefore abandoned any right to an appeal he may have had.” Id. at 28. Here, as in West, defendant was given written notice regarding how to perfect his appeal. Indeed, at defendant’s 1993 sentencing hearing, defense counsel made a record of the fact that he was handing defendant “written notice of his right to appeal, which indicate[d] th[e] steps he can take to perfect that appeal” (A26 [S: 6] [emphasis added]). By rule, as discussed, that notice explained the steps that defendant needed to take to apply for poor person’s relief. Defendant does not dispute that the written notice included all the relevant information, including an explanation of the manner of instituting an appeal, obtaining a transcript, and applying for poor person’s relief (see Defendant’s Brief at 10-11; see also A61 [Mem. of Law in Opp. to People’s Mot. to Dismiss at 3 (“[Defendant] does not dispute that the written appeals notice gave instructions on how to request assignment of a new appellate lawyer.”)]). Notably, 10 Specifically, this Court observed that the First Department’s rules required that trial counsel “advise a defendant in writing of the right to appeal and the time limitations involved” as well as “the manner for instituting an appeal and obtaining a transcript of the trial, and … the right to seek leave for appointment of counsel and to proceed with the appeal as a poor person.” 100 N.Y.2d at 26-27 (citing, inter alia, 22 N.Y.C.R.R. 606.5[b]). -23- too, defendant was undoubtedly familiar with his appellate rights, because he had, one year earlier, received written notice of his right to appeal after his sentencing for another crime in Supreme Court, Bronx County (PA19-20 [3/3/92 Tr. at 3-4]). Critically, despite receiving the written notice at his 1993 sentencing hearing, defendant took no action at all on his appeal for 19 years. In fact, in the interim, defendant’s 1993 conviction was used twice (in 2000 and 2004) to enhance his sentences for other crimes, and defendant did not challenge the validity of his 1993 conviction—or even mention a pending appeal—on either occasion (PA29-30 [3/27/2000 Tr. at 10-11]; PA38-42 [9/30/2004 Tr. at 8-12]). Hence, after being “properly informed of his appellate rights,” defendant decided to “let the matter rest” for 19 years, which undeniably constituted an abandonment of his right to appeal. See West, 100 N.Y.2d at 26. At the very least, the Appellate Division did not abuse its discretion as a matter of law by finding that defendant abandoned his appellate rights by letting the matter rest for so long. Indeed, as this Court intimated in West, delays of such extreme length should not be tolerated. After all, society has an “interest in finality of judgments,” which this Court has recognized as “formidable.” People v. Jackson, 78 N.Y.2d 638, 647 (1991); see also People v. Alexander, 97 N.Y.2d 482, 485 (2002) (invoking “interest of finality” as the basis for the principle that a “motion to withdraw a guilty plea will not be granted merely for the asking” [citing People v. Frederick, 45 N.Y.2d 520, 525 (1978)]); People v. Lopez, 71 N.Y.2d 662, 665 (1988) (explaining the reason for the -24- contemporaneous-objection rule: “[a]lthough a defendant must be afforded an opportunity to challenge the legality of the proceedings at issue, the very real interest of the State in achieving finality in a criminal prosecution mandates that such objections be timely raised” [internal quotation marks omitted]). Moreover, lengthy delays compromise the criminal justice system’s truth- seeking function, for “[a]s time passes, evidence is misplaced, witnesses disappear and once vivid memories of a crime begin to fade into uncertainty.” Jackson, 78 N.Y.2d at 646. Additionally, when an appeal is not perfected until many years after a conviction, it is entirely possible that trial transcripts or other important records will have been lost or destroyed in the interim. See, e.g., Judiciary Law § 297 (stenographers not required to preserve notes for more than two years or such time imposed by the chief administrator of the courts); People v. Mirenda, 57 N.Y.2d 261, 267 (1982) (defendant was not entitled to reversal based on the destruction of trial minutes because defendant failed to request the missing minutes within the period of Judiciary Law § 297). For those reasons, this Court recognized in West that “deadlines foster” the appellate process “by insuring the availability of the trial record and persons knowledgeable with the case for appeal or any re-trial if necessary.” West, 100 N.Y.2d at 28 n.5. Likewise, in People v. Taveras, supra, this Court upheld the Appellate Division’s dismissal orders in two cases where the defendants attempted to revive their long- dormant appeals following lengthy periods as fugitives (one defendant had been at -25- large for 8 years and the other for 18 years). 10 N.Y.3d at 230, 233. This Court explained that the delay would have rendered re-trials difficult if not impossible, as the People’s witnesses would undoubtedly have been difficult to locate, and their memories would have likely faded. Id. at 233. This Court noted that, in exercising its “broad discretion” whether to dismiss an appeal for failure to timely prosecute, the Appellate Division “may consider” several factors, including whether the defendant has “so delayed the administration of justice that the People would be prejudiced in locating witnesses and presenting evidence at any retrial should the defendant be successful on appeal.” Id.; see also People v. Lynn, 28 N.Y.2d 196, 202 (1971) (noting that a “defendant, having pleaded guilty to a charge, should not, years later, at a time when the prosecution is perhaps unable to prove its case, be allowed to assert that his constitutional right to appeal has been obstructed”). Those concerns are critically important here. Defendant pleaded guilty in 1993, willingly admitting his guilt. He waited 19 years to allege that his guilty plea should be set aside and the case restored to a pretrial posture. Of course, 19 years after the fact, it would be nearly impossible for the People to bring the case to trial, for even if the witnesses could be located, their memories have undoubtedly faded with the passage of time, which would make it difficult if not impossible to obtain a conviction. In fact, for that precise reason, “[d]elay is not an uncommon defense tactic.” Barker v. Wingo, 407 U.S. 514, 521 (1972); see also Vermont v. Brillon, 556 U.S. 81, 90 (2009). -26- Moreover, where, as here, a defendant takes no action on an appeal from a guilty plea for 19 years, the most logical conclusion is that he was happy with his plea bargain and chose not to disturb it. Indeed, the plea deal that defendant received in 1993 was highly favorable. The indictment charged defendant with the class C felony offense of second-degree burglary. If convicted after trial, defendant, a second violent felony offender, would have received an indeterminate prison sentence of no less than 4 to 8 years and possibly as much as 7 1/2 to 15 years. Penal Law § 70.04(3)(b), (4). And there was little doubt that defendant would have been found guilty at trial, for the evidence of his guilt was overwhelming. The victim caught defendant in the act of burglarizing her apartment, and defendant was arrested within minutes, a few blocks from the scene, carrying the victim’s property. In addition, the victim identified defendant at a “show up” at the scene, and there was thus every reason to believe that she would have identified him at trial (PA3-4 [VDF: 1-2]). By pleading guilty to the lesser, class D felony of attempted second-degree burglary, defendant secured a prison sentence of three years to six years, which was lower than the minimum sentence he could have received had he been convicted of the top count at trial. Notably, too, defendant was under no delusions about his guilt. When defendant applied for leave to appeal his 2004 conviction to this Court, he claimed that “for the first time in [his] life [he was] actually innocent” (PA68 [Letter from defendant to Clerk’s Office, Court of Appeals (July 13, 2006)]). Thus, defendant -27- recognized that he was guilty of the 1993 burglary, which explained his conscious decision to forgo an appeal of his guilty plea. And, of course, after defendant completed serving his sentence, he surely did not want to risk re-opening the case in order to obtain a trial, as he could have received a longer sentence after trial that would have required him to return to prison. See People v. Parris, 4 N.Y.3d 41, 44, 49- 50 (2004) (noting the “presumption … that by pleading guilty a defendant has neither reason nor desire to prosecute an appeal”). However, when defendant attempted to revive his appeal in 2012, the circumstances had changed, and he no longer had anything to lose by appealing his 19-year-old conviction. For one thing, as discussed, if the Appellate Division vacated defendant’s 1993 guilty plea and remanded the case for a trial, the chances that the People would be able to proceed to, and prevail at, trial on the 19-year-old case were remote. Further, after defendant’s 2004 conviction, he had a compelling reason to seek a reversal of his 1993 conviction, because it was one of two prior convictions used to adjudicate him a persistent violent felony offender in 2004. Because of that adjudication, defendant was serving a sentence of 16 years to life. Defendant obviously calculated that if he could successfully revive his 1993 appeal, he might be able to erase one of his prior convictions and be re-sentenced as a second violent felony offender. If he were able to do so, he would no longer be subject to a life -28- sentence; instead, he would be resentenced to a determinate prison term of no less than 7 years and no more than 15 years. Penal Law § 70.04(3)(b) (McKinney’s 2004). Simply put, defendant’s attempt, in 2012, to revive his 1993 appeal was nothing less than gamesmanship. He forwent an appeal for years when he had nothing to gain, because his 1993 guilty plea clearly conferred a substantial benefit. But nearly two decades later, when defendant believed that he could manipulate the system to reduce his sentence for a subsequent crime, he tried to revive his 1993 appeal, which he had abandoned long ago. Seeing defendant’s actions for what they were, the Appellate Division properly dismissed his untimely appeal. Certainly, the Appellate Division did not err as a matter of law by preventing defendant from engaging in such a blatant abuse of the appellate process. See People v. Acevedo, 17 N.Y.3d 297, 302-03 (2011) (denying relief to defendants who initiated “Sparber resentencing” proceeding so that they could “by means of vacatur and resentence, … render their prior convictions useless as predicates to enhance punishment for the crimes they subsequently committed”). C. Nevertheless, ignoring his obvious gamesmanship, defendant claims that the Appellate Division “abused its discretion as a matter of law” (Defendant’s Brief at 33) by dismissing his appeal. He contends that the Appellate Division lacked authority to dismiss his appeal unless he executed “a valid appeal waiver where the right to appeal -29- is adequately explained and the judge has guaranteed the voluntariness of the waiver,” or unless he engaged in conduct that was “openly contemptuous of appellate proceedings” (Defendant’s Brief at 21-22). As an initial matter, however, defendant did not raise this claim in the Appellate Division. Instead, while not disputing that an appeal may be deemed abandoned due to the passage of time, defendant merely asserted that he “did not abandon his appeal” under the circumstances here (A59 [Mem. of Law: 1 (emphasis added)]; App. Div. Reply Br. for Def.-App. at 1 (emphasis added)]). Thus, defendant has not preserved his current claim that a “waiver” analysis was required. See People v. Hunter, 17 N.Y.3d 725, 727-28 (2011) (holding that People’s standing argument was unpreserved where it was not raised in response to a suppression motion); People v. Syville, 15 N.Y.3d 391, 401-02 (2010) (People’s “due diligence” argument was unpreserved since it was not raised in the Appellate Division in response to a coram nobis petition). In any event, as discussed, the Legislature and this Court have already made clear that no “waiver” analysis is required. In that regard, CPL 470.60(1) expressly authorizes the Appellate Division to dismiss an appeal for “failure of timely prosecution or perfection thereof” or for “failure of action by the appellant with respect to the prosecution or perfection of such appeal.” Thus, contrary to defendant’s argument (Defendant’s Brief at 26), “[d]elay alone” is undeniably a proper ground for dismissal. This Court expressly stated that rule in People v. West, supra, explaining that “[t]he right to appeal is a statutory right that must be affirmatively -30- exercised and timely asserted. Consequently, a defendant who is properly informed of his appellate rights may not let the matter rest and then claim he did not waive the right to appeal.” 100 N.Y.2d at 26 (citation omitted); see also Taveras, 10 N.Y.3d at 233 (holding, without engaging in any waiver analysis, that two former fugitives had abandoned their appeals by not perfecting them in a timely fashion).11 Notwithstanding defendant’s reliance on federal law (e.g., Defendant’s Brief at 26-27), federal courts have made clear that no constitutional rule prohibits state appellate courts from enforcing procedural rules governing the conduct of appeals. See Goeke v. Branch, 514 U.S. 115, 119-120 (1995) (noting that the Court had never held “that due process requires state courts to provide for appellate review where the would-be appellant has not satisfied reasonable preconditions on her right to appeal as a result of her own conduct”); Estelle v. Dorrough, 420 U.S. 534, 538 n.7 (1975) (holding that state fugitive-disentitlement statute was justifiable as a measure “designed to secure the State’s interest in orderly judicial procedure”); Taveras v. Smith, 463 F.3d 141, 149 (2d Cir. 2006) (holding that New York State was entitled to establish “documentary requirements and timely filing schedules” as “reasonable preconditions” on the right to appeal). 11 Indeed, in People v. Callahan, 80 N.Y.2d 273 (1992), this Court distinguished the dismissal of a “procedurally defective” appeal, which is authorized by CPL 470.60(1), from a general “waiver” of the right to appeal. Id. at 283-84. Hence, as this Court recognized in Callahan, the Legislature identified the failure to timely perfect as a “procedural defect” that warrants dismissal of an appeal. “Waiver” analysis is simply not required. -31- In fact, the Supreme Court has upheld state rules mandating the dismissal of appeals where the defendants’ flight delayed the appellate process by only a few days. See Goeke, 514 U.S. at 115-16 (appeal dismissed where defendant failed to appear at a scheduled hearing on her post-conviction motion and was captured three days later); Estelle, 420 U.S. at 534-35 (defendant fled during the pendency of his appeal and was captured two days after his escape). Certainly, then, defendant had no due process right to revive his appeal here, where he took no action on it for 19 years following his guilty plea.12 D. Next, unable to demonstrate that the Appellate Division misapplied the law in dismissing his appeal, defendant tries to offer an equitable excuse for his 19-year 12 Alternatively, defendant argues that the Appellate Division improperly failed to consider “the merits” of his appellate claim before dismissing his appeal (Defendant’s Brief at 42). But contrary to defendant’s contention, the Appellate Division was not required to consider the merits of his “choice of counsel” claim when deciding the People’s dismissal motion. Indeed, in Taveras, this Court identified “the merits” of the appeal as only one of many factors that an appellate court “may consider” when deciding a dismissal motion. See Taveras, 10 N.Y.3d at 233. Notably, the notion that the merits of the appeal are even a factor arises from a highly unusual case, People v. Smith, 44 N.Y.2d 613 (1978), where the People urged that a defendant’s appeal be allowed to proceed even though she had absconded, because it raised a novel constitutional question. See id. at 616-17. Here, of course, the People do not agree that defendant’s appeal should proceed. In any event, in dismissing defendant’s appeal here, the Appellate Division expressly stated that it had “consider[ed] the relevant factors” (A2 [citing Taveras, 10 N.Y.3d at 233]). Thus, it appears that the Appellate Division did in fact consider the merits of defendant’s appeal but simply concluded, based on the totality of the circumstances, that defendant’s 19-year delay constituted an abandonment of his appellate rights. -32- delay. While conceding his “physical receipt” at sentencing of the “Notice form” explaining how to perfect his appeal (Defendant’s Brief at 33), defendant asserts that the attorney who represented him at his 1993 plea and sentencing proceedings (Bruce Klang, Esq.) made “post-sentencing promises” that led defendant to believe that Klang would “perfect[ ] his appeal for him” (Defendant’s Brief at 25, 33). Specifically, in his affirmation opposing the People’s dismissal motion, defendant alleged that “immediately after” he was sentenced, he asked his attorney, “What happens now about the appeal thing you mentioned?” (A72 [Calaff Aff. ¶ 8]). According to defendant, his attorney responded, “Don’t worry about that, I’ll take care of it” (id.). Thus, defendant asserts, he should not be held responsible for the 19-year delay, because he believed all along that his attorney was “tak[ing] care of” the appeal for him (see Defendant’s Brief at 28-33). As the Appellate Division found, however, the record refutes defendant’s claim that his attorney was responsible for the 19-year delay. Initially, as discussed, the written notice handed to defendant at sentencing explained “th[e] steps he [could] take to perfect that appeal” (A26 [S: 6]). Thus, contrary to defendant’s contention, counsel provided all the notice that was required. In fact, counsel took care to state on the record at sentencing that the written notice explained how defendant could pursue an appeal from his guilty plea, if he desired to do so. Nor does the record support defendant’s contention that his attorney promised, immediately after the sentencing hearing, to personally “take care of” the -33- appeal, with no further action by defendant required. At the outset, it strains credulity that counsel handed defendant written notice of his appellate rights in open court— and stated on the record that the notice explained the steps that defendant needed to take to perfect his appeal—and then immediately afterward, in a private conversation off the record, promised defendant that he would take care of perfecting the appeal personally. There is no conceivable reason why defendant’s attorney would have made such an off-the-record promise, which contradicted the statement he made on the record minutes earlier. Tellingly, aside from his own self-serving affidavit, defendant has presented no evidence that his attorney made such an off-the-record promise. Defendant has not submitted an affidavit from the attorney, nor did he express to anyone else—during the 19-year interim—that he believed his attorney was appealing the 1993 conviction. Notably, the record demonstrates that counsel diligently represented defendant at the plea and sentencing hearings. It makes no sense, then, that counsel would have vowed to “take care of” the appeal and then promptly reneged on his promise. Defendant’s 2012 affidavit, therefore, was an obvious fabrication—a groundless attempt to create an excuse for his inexcusable, 19-year delay. And, it is well- established that fact-finding courts, like the Appellate Division, may reject a defendant’s unsupported, uncorroborated, self-serving allegations. See, e.g., CPL 440.30(4)(d) (post-conviction motion to vacate the judgment may be denied without a hearing if an allegation of essential fact is “made solely by the defendant and is -34- unsupported by any other affidavit or evidence” and “there is no reasonable possibility that such allegation is true”); People v. Ozuna, 7 N.Y.3d 913, 915 (2006) (affirming CPL 440.10 court’s denial of defendant’s motion without a hearing, where defendant had failed to corroborate his allegations of attorney misconduct). Further, not only was defendant’s claimed excuse facially implausible, but the Appellate Division had sound reason to reject it based on the totality of the record. For one thing, in the same affidavit opposing the People’s dismissal motion, defendant made other dubious claims. In that regard, defendant averred that he had no recollection of being handed a notice of his right to appeal in 1993 (A71 [Calaff Aff. ¶ 5]). But, of course, the record reveals that counsel handed the notice to defendant in open court. Thus, defendant claimed an inability to remember events that plainly occurred. At the same time, defendant purported to recall—with great specificity—a promise allegedly made by counsel off the record, which conveniently excused his lengthy delay. Notably, too, defendant asserted in his affidavit that he was “completely unfamiliar with the appeals process” in 1993 (A71 [id. ¶ 6]), even though court records revealed that he had received a written a notice of appellate rights in 1992, following an earlier conviction (PA19-20 [3/3/1992 Tr. at 3-4]). Thus, defendant’s credibility was inherently suspect. Indeed, if defendant had truly believed that his attorney had promised to appeal his conviction in 1993, he surely would have mentioned that fact to someone prior to 2012. Yet despite numerous contacts with the criminal justice system, including two -35- subsequent felony convictions in which defendant was represented by counsel, defendant did not mention to a single person that he was appealing his 1993 conviction. Defendant’s failure to mention the 1993 appeal is particularly baffling given the fact that, following his convictions in 2000 and 2004, his sentences were enhanced based on the 1993 conviction. Yet on both occasions, instead of mentioning an appeal, defendant declined to challenge the validity of his 1993 conviction, even though he was given the opportunity to confer with counsel and was asked about the conviction in open court (see PA29-30 [3/27/2000 Tr. at 10-11]; PA38-42 [9/30/2004 Tr. at 8-12]). Defendant’s silence about his purported 1993 appeal speaks volumes.13 Notably, too, defendant was actively involved in the direct appeal from his 2004 conviction: he filed pro se letters, forms, and a brief in the Appellate Division, and he filed a pro se supplemental leave letter to a Judge of this Court. At the very least, therefore, it is beyond dispute that defendant knew how to prosecute an appeal in 2004. Still, he failed to take any action on his 1993 appeal until eight years later, in 2012. That eight-year delay alone was sufficient to justify the dismissal of defendant’s 1993 appeal for failure to prosecute. See, e.g., Taveras, 10 N.Y.3d at 233 (affirming the 13 In his 2012 affidavit, defendant asserted that he “did not think that [he] could talk to anyone about [his] appeal” because he had been warned by a previous attorney (who was ultimately relieved) “not to talk to anyone about [his] case” (A73 [Calaff Aff. ¶ 10]). This justification for his silence makes no sense. After all, defendant could not have suffered any negative consequences from merely mentioning that he had a pending appeal, which would have been a matter of public record. -36- Appellate Division’s dismissal of defendant Taveras’s appeal following his eight-year flight).14 Finally, defendant’s 2008 letters to attorney Klang demonstrated that, contrary to defendant’s current claim, he had not previously contemplated an appeal from his 1993 conviction. In those letters, defendant recounted the 1993 plea proceedings in substantial detail but never mentioned that Klang was supposed to have perfected an appeal (see A80-82). Instead, defendant asked Klang to verify his recollection of their plea discussions and also requested “a complete copy of my trial folder” (A81 [Letter from defendant to Bruce Klang (Sept. 9, 2008)]). Those letters demonstrate that, in 2008, defendant was just beginning to explore the possibility of challenging his 1993 plea bargain. Defendant’s failure to mention an appeal in those letters confirms what the totality of the record makes clear: defendant had not previously sought to appeal his 1993 conviction, and Klang certainly had not promised to pursue an appeal on defendant’s behalf. For all of these reasons, the Appellate Division appropriately determined, in the exercise of discretion and pursuant to its fact-finding power, that defendant had 14 In his 2012 affidavit, defendant claimed that his 2004 attorney completed the poor person’s application for him and merely “instructed [him] to sign it and send it to the Appellate Division” (A73-74 [Calaff Aff. ¶ 13]). In truth, however, defendant submitted a handwritten letter request for assignment of counsel and poor person’s relief, which was obviously not prepared by counsel (PA50). In the following weeks, defendant submitted two handwritten affidavits, both of which were undoubtedly completed by defendant himself (PA54-61). Defendant’s claim in his 2012 affidavit that he did not complete the forms himself was, therefore, utterly incredible. -37- consciously abandoned his 1993 appeal and had not been misled into thinking that Klang would perfect the appeal on his behalf. Thus, this case is far different from other cases cited by defendant in which the defendants exercised due diligence but their appeals were thwarted by misconduct on the part of the state or counsel. See, e.g., People v. Johnson, 69 N.Y.2d 339, 341-42 (1987) (holding, in “unusual” and “special circumstances” where “defendant’s timely efforts to appeal were being thwarted by the State” from 1967 to 1971, that subsequently enacted deadlines in CPL could not bar defendant’s appeal); People v. Hall, 200 A.D.2d 474, 474-75 (1st Dep’t 1994) (defendant who waited 14 years after his conviction to apply for poor person’s relief on appeal not held responsible for the resulting loss of the trial minutes, because his trial “attorney [had] indicated to the court after sentencing that he would remain with the case for the purpose of appeal” but had failed to prosecute the appeal on defendant’s behalf); cf. People v. Syville, 15 N.Y.3d 391 (2010) (holding that coram nobis relief is available where a defense attorney fails to timely file a notice of appeal despite the defendant’s request). In short, the Appellate Division properly rejected defendant’s attempt to attribute his 19-year delay in perfecting his appeal to counsel. Rather, as the Appellate Division found, the record refutes defendant’s self-serving claim that he was misled into thinking that his trial attorney would perfect his appeal. -38- E. As a last gasp, seeking to hold anyone other than himself responsible for his 19-year delay, defendant blames the Appellate Division. In particular, defendant argues that the Appellate Division should have assigned an attorney immediately after he filed a notice of appeal to assist him in submitting his application for poor person’s relief (see Defendant’s Brief, Point I.B). This claim, however, is unpreserved because defendant did not present it to the Appellate Division. For that reason alone, this Court should decline to consider it. See Hunter, 17 N.Y.3d at 727-28; Syville, 15 N.Y.3d at 401-02. Indeed, while defendant tried unsuccessfully below to lay the blame at trial counsel’s feet, he never once suggested that the delay was in any way attributable to a defect in the Appellate Division’s system for assignment of counsel. Moreover, as defendant concedes (see Defendant’s Brief at 44-45), his challenge to the Appellate Division’s assignment of counsel system has already been rejected by this Court. Notably, the First Department’s procedures governing the assignment of counsel for appeal are quite simple. A defendant need only submit a notarized letter that “request[s] that counsel be assigned,” “mention[s] that [the applicant is] without funds with which to retain counsel,” and “[s]tate[s] fully [the applicant’s] financial circumstances” and the reason the applicant cannot pay for an attorney (A29 [Notice of Right to Appeal]). Defendants are not held to a high standard in submitting such requests. In that regard, after defendant’s 2004 conviction for a separate crime, he wrote the Appellate Division a one-paragraph letter that requested assignment of -39- counsel, explaining that he was “indigent and [could] not afford an attorney.” Defendant added that he had “no funds,” “property,” or “bank accounts” (PA50 [Letter from defendant to the Appellate Division, First Department (Oct. 16, 2004)]). The Appellate Division then sent defendant a simple, three-page form, which he filled out and returned eight days later (PA53 [Letter from the Appellate Division, First Department to defendant (Oct. 20, 2004)]; PA59-61 [Def.’s Aff. in Supp. of Mot. to Proceed as a Poor Person (Oct. 28, 2004)]). That was all that was necessary for defendant to obtain poor person’s relief and counsel for that appeal. Not surprisingly, in People v. West, supra, this Court held that the First Department’s system for assignment of counsel on appeal comports with constitutional requirements. There, the First Department had dismissed the defendant’s appeal because he had waited until 14 years after his conviction to file an application for poor person’s relief. West, 100 N.Y.2d at 24. On appeal to this Court, the defendant contended that “an application for poor person relief is a critical stage of the proceeding to which his Sixth Amendment and due process rights to counsel attach.” Id. at 28. He argued, therefore, that he was not to blame for the 14-year delay, because “counsel should have been appointed for him to assist in the preparation of his poor person application.” Id. This Court rejected the defendant’s claim. To be sure, this Court recognized that the State must “provide the criminal appellant with the minimal safeguards necessary to make an adequate and effective appeal.” West, 100 N.Y.2d at 28. This -40- Court ruled, however, that the defendant had received all the process he was due because at sentencing he had been given a written document containing “clear instructions on how to apply for poor person relief.” Id. This Court observed further that the process for obtaining poor person’s relief was easy: the defendant was required only to inform “the appellate court of income, its source(s), and a list of property owned and its value.” Id. at 29. Indeed, this Court added, the required information was “uniquely available” to the defendant, and he did not require an attorney to “uncover or develop it.” Id. Accordingly, “the concerns underlying a due process right to counsel on direct appeal [we]re not present in the mechanism by which an indigent defendant [sought] poor person relief,” because “the need for careful advocacy to ensure substantial legal and factual arguments are not passed over [was] not implicated.” Id. at 28-29. Notably, the federal courts affirmed this Court’s decision on habeas corpus review, describing the Appellate Division’s procedure for obtaining poor person’s relief as “simple and straightforward.” West v. Breslin, No. 60 Civ. 4167, 2008 WL 110947, *5 (S.D.N.Y. Jan. 2, 2008), aff’d, 410 F. App’x 393 (2d Cir. 2011), cert. denied, 132 S. Ct. 371 (2011). Nevertheless, relying on Halbert v. Michigan, 545 U.S. 605 (2005), and People v. Kordish, 22 N.Y.3d 922 (2013), defendant argues that West is no longer good law. In fact, he asserts, West has been “abrogated both by this Court and the Supreme Court of the United States” (Defendant’s Brief at 47). Defendant’s claim, however, is utterly -41- without merit, as Halbert and Kordish involved scenarios entirely different from the one here. In Halbert, the defendant entered a nolo contendere plea to a criminal charge in a Michigan state court. See Halbert, 545 U.S. at 614. Under Michigan law, defendants who pleaded guilty or nolo contendere did not have a first-tier appeal as of right. Instead, they were required to seek permission to appeal, which the intermediate appellate court had discretion to grant or deny. Id. at 612-13. The application for permission to appeal required defendants to, among other things, “concisely recit[e] the appellant’s allegations of error and the relief sought; [and] set[ ] forth a concise argument … in support of the appellant’s position on each issue.” Id. at 622 (quoting the applicable state court rule). Further, defendants who pleaded guilty or nolo contendere were generally ineligible for appointment of appellate counsel at this initial stage. Instead, “most indigent defendants convicted by plea [had to] proceed pro se in seeking leave to appeal.” Id. at 612-13. In Halbert, after being denied discretionary review of his plea by the Michigan appellate courts, the defendant argued in the United States Supreme Court that the Michigan process violated his equal protection and due process rights. See Halbert, 545 U.S. at 609, 614-16. The Court held the Michigan system unconstitutional, ruling that the process of applying for permission to appeal in the Michigan appellate courts was similar to a first-tier appeal on the merits because it involved consideration of substantive questions of law. See id. at 619, 621-22. Further, the Supreme Court -42- noted, an applicant for review will be “forced to act pro se” in arguing the merits of the appeal and “will face a record unreviewed by appellate counsel.” Id. at 619. Citing cases that had previously affirmed a defendant’s right to the assistance of counsel when preparing a first-tier appeal on the merits, the Court observed that indigent defendants are “generally ill equipped to represent themselves” in appeals that could “involve myriad and often complicated substantive issues.” Id. at 617, 621 (internal quotation marks omitted).15 The present case is far different from Halbert because the Appellate Division’s practice here did not require defendant to prepare substantive legal arguments without the assistance of counsel. Instead, as discussed, defendant was merely asked to fill out a simple form inquiring about his income and assets. As this Court explained in West, the assistance of counsel was not necessary because defendant was not asked to engage in any legal advocacy whatsoever. See West, 100 N.Y.2d at 28-29. In fact, unlike the Michigan rule invalidated in Halbert, which denied entire classes of defendants the assistance of appellate counsel, the Appellate Division’s rules here ensure the right of every indigent defendant to appointed appellate counsel. To obtain appointed counsel, indigent defendants are required to do nothing more than 15 In addition, the Court noted in Halbert that the defendant suffered from learning disabilities and was mentally impaired. 545 U.S. at 615-16. The Court remarked that “[n]avigating the appellate process without a lawyer’s assistance is a perilous endeavor for a layperson, and well beyond the competence of individuals, like Halbert, who have little education, learning disabilities, and mental impairments.” Id. at 621. -43- fill out a simple form demonstrating their lack of funds. And defendants are given clear instructions at sentencing explaining how to complete the poor person’s application. While defendant now vehemently argues that this system is unworkable (see Defendant’s Brief at 43-44), this Court soundly rejected that argument in West, for all the reasons described above. Still, citing a discussion in Halbert regarding rates of illiteracy and mental illness among prisoners, defendant asserts that mentally impaired or illiterate litigants might have difficulty applying for poor person’s relief on their own (see Defendant’s Brief at 47-48, 51-52). But once again, the discussion in Halbert related to a Michigan rule that forced indigent defendants to make substantive legal arguments, without the assistance of counsel, in order to obtain a first-tier appeal. In contrast, the New York Appellate Division, First Department, merely asks defendants to fill out a simple form showing their finances to prove that they qualify for poor person’s relief. Here, moreover, defendant has never alleged that he was mentally impaired or was otherwise unable to understand the process for obtaining appointed counsel. To the contrary, defendant demonstrated his competence when he applied for poor person’s relief following his 2004 conviction and also filed numerous pro se documents with the courts. Thus, while it might be advisable to ensure that, in appropriate cases, mentally -44- impaired defendants receive any necessary assistance in applying for poor person’s relief, there can be no argument that defendant was in need of such assistance here.16 Defendant’s reliance on People v. Kordish, supra, is similarly misplaced. In that case, this Court held that, because the Appellate Division’s decision whether to dismiss an appeal for failure to prosecute under CPL 470.60(1) is discretionary, a defendant is entitled to the assistance of counsel in order to respond to a dismissal motion. See 22 N.Y.3d at 922-24; accord Taveras v. Smith, 463 F.3d 141 (2d Cir. 2006). The reason is that, in contrast to the “simple,” “straightforward,” and “modest” procedure for seeking poor person’s relief, see West, 2008 WL 110947, at *5, a motion to dismiss an appeal requires legal argument. Indeed, when considering a dismissal motion, the Appellate Division reviews numerous factors, which can include the merits of the appeal. See Kordish, 22 N.Y.3d at 923; Taveras, 463 F.3d at 147, 149-51. Thus, while a defendant does not require counsel’s help to fill out a simple poor person’s application involving financial circumstances that are “uniquely available to” him, West, 100 N.Y.2d at 29, he is entitled to the assistance of counsel in opposing a 16 Moreover, it is impossible to believe that the Appellate Division would not provide assistance to any defendant who asks for help in completing the poor person’s form. Certainly, the record does not reflect that poorly educated or mentally impaired defendants are denied such assistance. Indeed, defendant does not point to a single reported case where the Appellate Division’s procedures resulted in an illiterate or mentally impaired defendant being denied the right to appeal. -45- motion to dismiss his appeal.17 Notably, the Kordish rule was followed here, as defendant received the assistance of counsel in responding to the People’s dismissal motion. Defendant fares no better with his citation to the Tenth Circuit’s unreported decision in United States v. McMahon, No. 04-5011, 2005 WL 115506 (10th Cir. 2005) (unpublished) (cited in Defendant’s Brief at 49). Defendant seizes on a single line in the McMahon decision, in which the court stated that a defendant has a right to the assistance of counsel in “the hiatus between the termination of trial and the beginning of an appeal.” Id. at *3 (internal quotation marks omitted). But in the same breath, the McMahon court held that where, as here, a defendant has pleaded guilty, “an attorney has no absolute duty in every case to advise a defendant of his limited right to appeal.” Id. at *4 (internal quotations omitted). Moreover, when the McMahon court mentioned the “hiatus” between trial and appeal, it did not hold or imply that a defendant is entitled to the assistance of counsel in filling out a simple form to prove that he is indigent and, therefore, is in fact entitled to appointed counsel. Instead, the court was citing a 10th Circuit rule, announced in Baker v. Kaiser, 929 F.2d 1495 (10th Cir. 1991), which provides that a defendant is entitled to the assistance of counsel in deciding whether to file a notice of 17 Significantly, in Kordish, this Court did not cite West or call its holding into question in any way. -46- appeal. Id. at 1497-99. That rule makes sense, because the decision whether to file a notice of appeal involves a strategic calculation regarding, among other things, the merits of a potential appeal. An attorney’s assistance in making the decision whether to file a notice of appeal is therefore important. Notably, too, a notice of appeal is a legal document that a lay defendant would not necessarily know how to file alone, and the time limits for filing notices of appeal are strictly enforced. Indeed, like the 10th Circuit, this Court has held that a defense attorney may be deemed ineffective for failing to file a notice of appeal upon the defendant’s request. See generally Syville, 15 N.Y.3d 391. By contrast, contrary to defendant’s suggestion, neither this Court nor the 10th Circuit has indicated that criminal defendants have a constitutional right to legal assistance in filling out a simple form that is used for the sole purpose of verifying a defendant’s indigence. Still, defendant asks this Court to rewrite the current Appellate Division procedures and to mandate, by its own judicial fiat, that the courts “fill the gap in representation” by providing appellate counsel to criminal defendants immediately upon the filing of a notice of appeal (see Defendant’s Brief at 43-44). As demonstrated, however, the First Department’s current rules comport with constitutional requirements, and this Court has no authority to rewrite them. Moreover, the Appellate Division has good reason to require that defendants demonstrate indigence before obtaining appointed counsel. After all, when the Appellate Division appoints counsel, it does so at State expense, and the State has a -47- financial interest in ensuring that its scarce resources are directed towards those individuals who in fact require government assistance. And, as discussed, the poor person’s application is simple and uncomplicated. Further, it makes sense that the Appellate Division would reserve appointment of counsel to those defendants who demonstrate their desire to pursue an appeal by filling out the simple, straightforward poor person’s application. As a matter of routine practice, nearly every defendant’s trial attorney files a notice of appeal at sentencing, lest the attorney be deemed ineffective for failing to file a notice. See, e.g., Syville, 15 N.Y.3d at 397 (“When defense counsel disregards a client’s timely request to file a notice of appeal,” and “[w]hen counsel’s omission causes a defendant to lose the right to perfect or obtain merits consideration of an appeal, the deficient performance amounts to ineffective assistance of counsel”); Restrepo v. Kelly, 178 F.3d 634, 639-40 (2d Cir. 1999) (stating that “[i]f the defendant told his lawyer to appeal from the conviction, and the lawyer dropped the ball, then the defendant has been deprived” of his right to counsel [internal quotation marks omitted]). However, more than 96% of criminal defendants plead guilty,18 and many of those defendants obtain highly- favorable plea bargains, as defendant did here. Often, defendants who plead guilty have no desire to pursue an appeal, because victory on appeal would restore them to 18 See Div. of Crim. Justice Servs., Criminal Justice Statistical Report 20 (May 2012), available at http://goo.gl/zEEtwA. The statistic was derived by summing the values for “convicted – plea” (36,599) and “convicted – verdict” (1,439), and then dividing the number of plea convictions by that sum (38,028). -48- their pre-plea position and deprive them of the benefits of their bargains. See Lynn, 28 N.Y.2d at 202. In fact, as discussed in Part B, above, that is undoubtedly why defendant did not initially pursue an appeal of his 1993 conviction here. To assign appellate counsel automatically to every defendant, at state expense, would thus impose unnecessary costs on the criminal justice system without any clear benefits. In any event, regardless of the merits of defendant’s proposal, it is a matter best left to the Appellate Division, which has been given statutory authority to enact rules governing its own practices and procedures, see Judiciary Law § 85, or to the Legislature. Finally, defendant tries to attribute his 19-year delay to the fact that his appeal never appeared on the First Department’s “dismissal calendar” (see Defendants’ Brief at 39-40). Under the First Department’s rules, if a criminal defendant has not perfected his appeal within 18 months of the awarding of poor person’s relief, the court will dismiss the appeal sua sponte, on 15 days’ notice, unless the defendant satisfactorily explains the delay. 22 N.Y.C.R.R. 600.12(c)(2)-(4). Because defendant never applied for poor person’s relief, however, his case was not put on the dismissal calendar. Seizing on that fact, defendant argues that, by failing to place his case on the dismissal calendar, the Appellate Division denied him the opportunity to submit an “explanatory affidavit” justifying his delay (Defendant’s Brief at 40). At the outset, defendant’s claim regarding the dismissal calendar is unpreserved because he did not raise it below. Further, it is ironic. Essentially, defendant argues that he suffered prejudice because the Appellate Division did not, sua sponte, identify -49- his appeal as one that was subject to dismissal. But contrary to defendant’s contention, the First Department’s failure to place his case on its sua sponte dismissal calendar did not work to his disadvantage. In fact, because it was not placed on the dismissal calendar, defendant’s appeal remained pending for years, affording him additional time to perfect it. Far from impeding defendant’s exercise of his appellate rights, the Appellate Division allowed his appeal to remain on the docket longer than he had any reasonable right to expect. In any event, defendant would not have benefited from being given an “opportunity” at some earlier time to explain his delay, because as discussed above, defendant has not offered—to this day—a credible explanation for any of his delay in prosecuting his appeal. Thus, if his case had been placed on the dismissal calendar at some earlier time, his appeal would have been dismissed long ago, and he would not have even been able to try to perfect it 19 years later.19 * * * 19 Also, contrary to defendant’s assertion, the dismissal calendar does not make an improper distinction between “represented” and “pro se” defendants (Defendant’s Brief at 39). The dismissal calendar applies to all long-dormant appeals where poor person’s relief has been granted, regardless of whether the defendants are proceeding pro se or with the assistance of counsel. Hence, the dismissal calendar merely ensures that defendants who have been granted permission to appeal at State expense exercise their right to appeal within a reasonable time, regardless of whether they are proceeding pro se or with the assistance of counsel. See 22 N.Y.C.R.R. 600.12(c)(2) (requiring notice to be served on defendant and also on “his attorney if any” [emphasis added]). -50- In sum, under the Criminal Procedure Law and this Court’s precedents, the Appellate Division had discretion to dismiss defendant’s appeal based on his unexcused, 19-year delay. Indeed, the length of defendant’s delay was extraordinary, displayed apparent gamesmanship, and prejudiced the People by rendering a trial next to impossible if an appellate reversal were ordered. Certainly, then, the Appellate Division did not abuse its discretion as a matter of law when it ordered the appeal dismissed. POINT II DEFENDANT’S CHOICE OF COUNSEL CLAIM IS NOT PROPERLY RAISED IN THIS APPEAL. IN ANY EVENT, THERE IS NO RECORD SUPPORT FOR DEFENDANT’S UNPRESERVED CLAIM THAT THE TRIAL COURT VIOLATED HIS RIGHT TO COUNSEL OF HIS CHOICE (Answering Defendant’s Brief, Point II). Defendant claims that the trial court violated his right to counsel of his choice when it relieved his assigned attorney, who without explanation had failed to appear in court, and assigned another attorney to replace him (Defendant’s Brief, Point II). This claim, however, is not reviewable, because in the present appeal this Court has power to review only the propriety of the Appellate Division’s order dismissing defendant’s appeal for failure to prosecute. See CPL 470.60(3). In addition, defendant’s choice of counsel claim is unpreserved because he voiced no objection to the court’s decision to relieve his attorney and appoint a new -51- one. Further, the record does not support defendant’s contention that the court “interfere[d]” with a protected attorney-client relationship by substituting counsel (see Defendant’s Brief at 58). Indeed, from all that appears, defendant agreed with the court’s decision and was content to proceed with his new attorney. A. To begin, defendant’s challenge to the trial court’s substitution of counsel is beyond this Court’s power to review, because it falls outside the proper scope of his present appeal. As explained above, when the Appellate Division dismissed defendant’s direct appeal for failure to prosecute, it did not determine his choice of counsel claim on the merits. As the Criminal Procedure Law makes plain, on appeal from such a dismissal order, this Court may review only whether the order of dismissal was “invalid as a matter of law” or “an abuse of discretion.” CPL 470.60(3). Any substantive challenge to defendant’s conviction is not reviewable at this time. The applicable statutes are crystal clear. As discussed in Point I, above, CPL 470.60(1) grants the Appellate Division authority to dismiss an appeal “upon the ground of . . . failure of timely prosecution or perfection thereof.” CPL 470.60(1). If a defendant’s appeal is dismissed for failure to prosecute, he may seek review by this Court. Specifically, CPL 470.60(3) declares, “[p]rovided that a certificate granting leave to appeal is issued pursuant to this subdivision, an appeal may be taken, in the -52- manner prescribed in subdivision four of section 460.10, to the court of appeals from an order of an intermediate appellate court dismissing an appeal thereto.” Critically, CPL 470.60(3) places strict limits on this Court’s review power where an intermediate appellate court has dismissed an appeal for failure to prosecute. In that regard, the losing party’s appeal “may be based” on two grounds only: “either upon the ground that the dismissal was invalid as a matter of law or upon the ground that it constituted an abuse of discretion.” CPL 470.60(3). Further, the Legislature declared, this Court may resolve the appeal in only two possible ways: “the court of appeals must either affirm or reverse the intermediate appellate court order.” Id. Put another way, this Court must hold either that the appeal was properly dismissed, and therefore the order of the Appellate Division is affirmed, or that the appeal should not have been dismissed, and therefore the Appellate Division’s order is reversed and the case remitted for further proceedings in the Appellate Division. Applying these statutory rules, Point II of defendant’s brief falls outside the contours of this Court’s review power. In that point, defendant does not challenge the Appellate Division’s dismissal of his appeal for failure to prosecute. Instead, defendant challenges the underlying judgment of conviction, asserting that his guilty plea was taken in violation of his right to counsel of his choice. Hence, in Point II, defendant asks this Court to look beyond the propriety of the Appellate Division’s order dismissing his appeal and seeks substantive review of the underlying judgment. -53- As explained, however, this Court has no power to vacate the judgment of conviction on appeal from the Appellate Division’s dismissal for failure to prosecute. Instead, Section 470.60(3) permits this Court only to affirm or reverse the Appellate Division’s order dismissing the appeal. This Court may not address any other question. See People v. Brown, 40 N.Y.2d 381, 385 n.4 (1976) (observing that, under CPL 470.60(3), “our jurisdiction on this appeal extends only to the correctness of the dismissal of the appeal at the Appellate Division”). And, of course, reviewability statutes must be strictly construed, as “[a]ppeals in criminal cases are strictly limited to those authorized by statute.” People v. Bautista, 7 N.Y.3d 838, 838-39 (2006). That conclusion, which is mandated by a straightforward reading of CPL 470.60(3), is consistent with this Court’s longstanding practice in criminal cases. Where this Court reverses an intermediate court’s order dismissing an appeal, this Court does not go on to consider the merits of the appeal. Instead, this Court remits the case to the intermediate court “for consideration of the merits of the appeal.” People v. Ventura, 17 N.Y.3d 675, 682 (2011); accord People v. Fetcho, 91 N.Y.2d 765 (1998) (same); People v. Ramos, 85 N.Y.2d 678 (1995) (same); People v. Coppa, 45 N.Y.2d 244 (1978) (same); see also People v. Callahan, 80 N.Y.2d 273 (1992) (holding, in three -54- separate cases, that the Appellate Division had erroneously dismissed defendants’ appeals and remitting each case to the Appellate Decision for further proceedings).20 Here, therefore, this Court may consider only the claim raised in defendant’s Point I: whether the Appellate Division appropriately dismissed his appeal for failure to prosecute. If this Court rules that defendant’s appeal should not have been dismissed, it has no power to consider his substantive challenge to his conviction. Instead, under CPL 470.60(3), this Court is empowered only to “reverse” the dismissal order and remit the case to the Appellate Division, which would then consider defendant’s appeal on the merits. In short, the Legislature consciously and purposely limited this Court’s review power to the sole question of whether the dismissal order was proper. Because Point II of defendant’s brief asks this Court to look beyond the propriety of the Appellate Division’s order dismissing his appeal, this Court has no power to consider and determine it. 20 By contrast, the CPL confers broader review powers on this Court when the Appellate Division has determined an appeal on the merits. Specifically, this Court’s review power is governed by CPL 470.35(1) when a party appeals “from an order of an intermediate appellate court affirming a judgment, sentence or order of a criminal court,” and CPL 470.35(2) governs when a party appeals “from an order of an intermediate appellate court reversing or modifying a judgment, sentence or order of a criminal court.” Here, however, the Appellate Division did not affirm, reverse, or modify a judgment, sentence or order of a criminal court. Instead, the Appellate Division dismissed an appeal for failure to prosecute. Thus, CPL 470.60(3)—not CPL 470.35—governs this Court’s review power here. -55- B. In any event, even if defendant’s choice of counsel claim fell within the proper scope of his present appeal, which it does not, it would still be unreviewable for an independent reason. Specifically, defendant has failed to preserve his claim that the trial court erred by relieving his attorney and assigning new counsel. As this Court held in People v. Tineo, 64 N.Y.2d 531, 535-36 (1985), a defendant must lodge an objection in the trial court in order to preserve for appellate review a claim that his attorney was improperly relieved. In Tineo, the defendant raised no objection when his attorney asked to be relieved on account of a possible conflict of interest. See id. at 534. The court granted the attorney’s motion and assigned new counsel. See id. Three days later, the defendant expressed a desire to relieve his new attorney and reinstate his original attorney, who had since changed his mind about needing to withdraw. The trial court declined to relieve the new attorney but permitted the original attorney to assist the defense team, although not as counsel of record. See id. at 534-35. On appeal, the defendant argued that the trial court had deprived him of “counsel of his choice” by relieving his original attorney. Id. at 535- 36. This Court found that claim unpreserved, explaining that the “defendant did not voice any objection to his attorney’s application to be relieved as defense counsel.” Id. -56- at 536;21 see also People v. Gray, 21 A.D.3d 1398, 1399 (4th Dep’t 2005) (“Defendant failed to preserve for our review his contention that the court failed to provide him with an explanation for the substitution [of counsel].”). Here, as in Tineo, defendant’s appellate challenge to the trial court’s substitution of counsel is unpreserved. On February 24, 1993, defendant and his co-defendant, William Martinez, appeared before Justice Rothwax. Martinez’s attorney was present, but defendant’s attorney (Robert Dorff), who had been assigned at defendant’s January 15th arraignment, was not (A5: [P1: 2]; PA2 [Notice of Appearance (Jan. 15, 1993]). Following an off-the-record conference, the judge noted that Dorff had not appeared in the courtroom. The judge asked if anyone had seen or heard from Dorff (A5 [P1: 2]). When no one responded, the court relieved Dorff and assigned a new attorney, Bruce Klang, to represent defendant (id.). Neither defendant nor anyone else objected to the substitution (id.). After Mr. Klang sought permission to confer with defendant, the case was adjourned, and a second call was held later that day (A6 [P1: 3]). When the case was recalled, defendant accepted the People’s offer to plead guilty to a reduced charge (A8-11, 17-18 [P2: 2-5, 11-12]). Defendant raised no complaints about Mr. Klang’s representation, nor did he ever ask for his original attorney to be reinstated. 21 This Court rejected defendant’s additional, preserved claim: that the trial court should have granted his subsequent request to reinstate his original attorney as counsel of record. See id. at 536-37. -57- As these facts demonstrate, the present case is materially indistinguishable from Tineo. Here, like the defendant in Tineo, defendant raised no objection when the court relieved his original attorney and assigned new counsel. In fact—unlike Tineo, who later expressed dissatisfaction with his new counsel—defendant expressed no dissatisfaction with Mr. Klang and never asked that his original attorney be reinstated. Rather, from all that appears, defendant was content with Mr. Klang’s representation and even accepted a guilty plea on Mr. Klang’s advice. Hence, because defendant voiced no objection to the substitution of counsel, his current claim that he was denied the “counsel of his choice” is unpreserved and unreviewable. See Tineo, 64 N.Y.2d at 535-36. Significantly, and contrary to defendant’s argument (Defendant’s Brief at 61), he had ample opportunity to express any opposition he might have had to the substitution of his counsel. In that regard, if defendant had reservations about the court’s decision to substitute counsel, he could have complained at any number of junctures, including when Justice Rothwax relieved defendant’s original attorney (Dorff) (A5 [P1: 2]), when Mr. Klang was appointed as substitute counsel (id.), or at any point during the plea and sentencing proceedings. Notably, during the plea and sentencing proceedings, defendant demonstrated the ability to advocate for his interests in his own words (see, e.g., A10 [P2: 4 (stating confusion about definition of burglary)]; A16-A17 [P2: 10-11 (asking for additional time to confer with counsel)]; A26 [S: 6 (requesting that his sentence run concurrently with Bronx sentence)]). -58- Surely then, defendant would have spoken up if he had actually opposed the court’s decision to relieve his original attorney and to appoint Mr. Klang. Indeed, defendant’s first complaint about the substitution of counsel came 19 years later, when he filed his brief to the Appellate Division in 2012. Similarly, Tineo refutes defendant’s contention that the judge was required to solicit his opinion about the substitution of counsel (Defendant’s Brief at 61). Instead, as this Court plainly stated in Tineo, a claim that a defense attorney should not have been relieved is unpreserved where the defendant “did not voice any objection” to the substitution of counsel. Tineo, 64 N.Y.2d at 536. Defendant’s reliance on People v. Griffin, 20 N.Y.3d 626 (2013), is misplaced, because that case concerned a separate issue: whether the defendant, by subsequently pleading guilty, forfeited his claim that the trial court had unjustifiably removed his original attorney over the attorney’s protests. In accordance with this Court’s decision in Griffin, see id. at 630-32, the People do not argue here that defendant forfeited his choice of counsel claim by virtue of his subsequent guilty plea. Instead, the People merely ask this Court to apply the longstanding holding of Tineo that, if no objection was raised to the trial court’s decision to substitute counsel, an appellate challenge to the substitution will be deemed unpreserved for review.22 Nothing in Griffin, which 22 Notably, in Griffin, this Court expressed no doubt that the claim was preserved for appellate review, as the trial court had “relieved the Legal Aid Society over the [attorney’s] objections.” Id. at 629. -59- concerns the separate matter of forfeiture by guilty plea, undermines the longstanding preservation rule announced in Tineo.23 C. Preservation aside, defendant’s appellate claim fails, because the record does not demonstrate that the judge’s substitution of counsel contravened defendant’s wishes. The premise of defendant’s newfound “choice of counsel” claim is that defendant knew and trusted his original attorney (Mr. Dorff) and did not want new counsel assigned, even though Dorff unjustifiably failed to appear for an important court date (see Defendant’s Brief at 57-58, 60-63). This argument, however, relies on unbridled speculation and has no basis in the record. Initially, there is no record evidence that defendant and Dorff had a relationship of trust that defendant wished to continue. In that regard, the record reveals only that Dorff was assigned to represent defendant at his Criminal Court arraignment, on January 15, 1993, and that Dorff appeared at defendant’s Supreme 23 To be sure, as defendant notes (Defendant’s Brief at 61-62), certain claims implicating the right to counsel need not be preserved by specific objection, so long as the record is sufficient to permit appellate review. See, e.g., People v. Jones, 55 N.Y.2d 771, 773 (1981) (claim of ineffective assistance of counsel can be raised for the first time on appeal); People v. Samuels, 49 N.Y.2d 218, 221 (1980) (claim that police questioning violated right to counsel exempted from ordinary preservation rules). However, as demonstrated, a claim that a defendant was denied counsel of his choosing must be preserved by specific objection. -60- Court arraignment on February 9, 1993 (PA2 [Notice of Appearance (Jan. 15, 1993)]; PA13 [Notice of Appearance (Feb. 9, 1993)]).24 Dorff did not engage in any motion practice or participate in any hearings. In fact, the record does not reveal whether Dorff even met with defendant after the Supreme Court arraignment or whether he had anything more than a superficial familiarity with the case. And certainly, nothing in the record suggests that Dorff and defendant had “developed a case strategy” (Defendant’s Brief at 61).25 24 The People made a plea offer at the Supreme Court arraignment (PA16 [2/9/93 Tr. at 3]), but the record does not reveal the details of the offer. Nor does the record reveal whether defendant discussed the offer with Dorff. 25 In his 2012 affidavit opposing the People’s motion to dismiss, defendant claimed that he and Dorff “had talked about going to trial in this case” (A71 [Calaff Aff. ¶ 4]). However, that statement was vague and devoid of details. Indeed, it is quite possible that the conversation referenced by defendant occurred at arraignment and lasted no more than a minute or two. Critically, even in his 2012 affidavit, defendant did not allege that he had established a close relationship with Dorff or that he had wanted Dorff to continue as counsel even after he failed to appear at the first post-arraignment calendar call. Moreover, defendant’s 2012 affidavit is not part of the direct appeal “record” relevant to his “choice of counsel” claim, as the affidavit pertained only to the People’s motion to dismiss. As noted, defendant had ample opportunity during the plea and sentencing proceedings to voice an objection to the substitution of counsel; he also could have moved to withdraw his guilty plea in the intervening month. He should not now be permitted to create a “record” 19 years later in a self-serving affidavit that, as discussed in Point I, above, contained a number of spurious allegations. See, e.g., People v. Park, 60 A.D.3d 972, 973 (2d Dep’t 2009) (rejecting defendant’s ineffective-assistance claim, which was “premised largely on affidavits and conversations dehors the record, which cannot be reviewed on direct appeal”); Ghaffari v. N. Rockland Cent. Sch. Dist., 23 A.D.3d 342, 344 (2d Dep’t 2005) (“It is axiomatic that appellate review is limited to the record made at nisi prius and, absent matters which may be judicially noticed, new facts may not be injected at the appellate level.” [internal quotation marks omitted]); Hardial v. City of New York, 195 A.D.2d 295, 296 (1st Dep’t 1993) (noting that court would not enlarge appellate record to accept affidavits that were not before the trier of fact). -61- Indeed, defendant could reasonably have concluded that his case was unimportant to Dorff. After stating at the Supreme Court arraignment that he would be able appear on an adjourn date of February 24, 1993 (PA16 [2/9/13 Tr. at 3]), Dorff was absent on that date without making any effort to contact defendant or the court to explain his absence. Given Dorff’s superficial involvement in the case and apparent lack of communication with defendant, it is not surprising that defendant raised no objection to the court’s efforts to find a new attorney when Dorff inexplicably failed to appear. In fact, from all that appears, defendant was just as happy—and perhaps happier—to be represented by his new counsel, Mr. Klang. At the very least, the existing record does not demonstrate that the court frustrated defendant’s desires by relieving Dorff and appointing Klang in his stead. And, of course, defendant cannot prevail on his “counsel of choice” claim absent record evidence that he wanted Dorff to continue as his attorney and did not want to be represented by Klang. See People v. Kinchen, 60 N.Y.2d 772, 773-74 (1983) (denying right-to-counsel claim where defendant failed to present “a factual record sufficient to permit appellate review”).26 Notably, defendant had good reason to accept the substitution of counsel: he was considering the People’s plea offer, which was going to be withdrawn if it was not 26 For that reason, defendant is wrong to rely on cases where the trial court undeniably interfered with the defendant’s relationship with his chosen counsel. See, e.g., People v Knowles, 88 N.Y.2d 763 (1996). -62- accepted that day (see A6 [P1: 3]). Defendant understandably wanted to discuss the offer with an attorney in order to make a final decision as to whether to accept it. Indeed, with Klang’s assistance, defendant acted just in the nick of time. When the offer was about to be withdrawn, Klang protested that he needed more time to discuss it with defendant (id.). The offer was held open until a “second call” later that day, at which point defendant accepted the offer and entered a plea of guilty (see id.; A8-11, 17-18 [P2: 2-5, 11-12]). As discussed in Point I, above, the plea offer was favorable to defendant: it allowed him to plead guilty to a lesser charge and obtain a reduced sentence, even though the evidence of his guilt was crushing and he would undoubtedly have been convicted after trial. Thus, far from violating defendant’s rights, the substitution of counsel furthered defendant’s interests by allowing him to accept a favorable plea offer that otherwise would have expired. In fact, from all that appears, defendant acted sensibly by not objecting to the substitution. Moreover, it would be wrong to assume, on this record, that the decision to substitute counsel emanated from the judge rather than from defendant himself. Significantly, when Dorff failed to appear, an off-the-record conference was held, after which the judge made the substitution of counsel without objection (A5 [P1: 2]). It is entirely possible that, at the off-the-record conference, defendant begged the court for new counsel, because defendant was considering the plea offer and was upset that his attorney was not in court. Indeed, it makes far more sense that the court sought to further defendant’s wishes, rather than to undermine them, by -63- substituting counsel. At the very least, as discussed, the record does not establish that defendant felt any affinity toward Dorff or had any desire to continue their attorney- client relationship. Thus, on this record, defendant cannot complain that he was denied counsel of his choice. See People v. McLean, 15 N.Y.3d 117, 121 (2010) (holding that a defendant cannot prevail on direct appeal where the “record falls short of establishing conclusively the merit of defendant’s claim”). Finally, the record fails to support defendant’s contentions that Klang performed deficiently during the plea proceeding and was unprepared to represent him (Defendant’s Brief at 63-66). Quite to the contrary, the record reveals that Klang discussed the plea offer with defendant at length, and, when some confusion arose regarding the precise terms of the plea offer, that Klang participated in an off-the- record bench conference with the court and then engaged in further discussions with defendant (A6 [P1: 3]; A8-9, 12, 16-17 [P2: 2-3, 6, 10-11]). And, the plea colloquy reveals that defendant accepted the plea deal knowingly, voluntarily, and intelligently (A9-11, 17-18 [P2: 3-5, 11-12]). Simply put, the record demonstrates that Klang was active and engaged, and that he made sure that defendant was adequately informed about the offer before the plea deal was finalized.27 27 Similarly, there is no record support for defendant’s assertion that Klang “did no meaningful investigation of the facts” (Defendant’s Brief at 65). After all, the record does not reveal the extent of Klang’s preparation or indicate that any additional “investigation” was necessary. Klang was undoubtedly aware that defendant had been charged with burglary and that he had been caught red-handed, near the scene, in possession of the victim’s (Continued…) -64- * * * In sum, defendant’s choice of counsel claim is unreviewable because, on appeal from the Appellate Division’s order dismissing defendant’s appeal, this Court’s review power is limited to determining whether the dismissal order was invalid as a matter of law or an abuse of discretion. In addition, defendant’s newfound claim is subject to an independent procedural bar, because he did not preserve it for appellate review. In any event, no record evidence demonstrates that defendant was unhappy with the substitution of counsel or that his new attorney performed deficiently in any respect. Accordingly, defendant’s conviction should not be disturbed on this ground. ______________________ (…Continued) property. In fact, it is entirely possible that defendant confessed his guilt to Klang and made clear that there was no viable defense. It made sense, therefore, for Klang to recommend that defendant accept the plea offer. Certainly, on this record, it is impossible to conclude that Klang was unprepared to give proper advice or that any further “investigation” was necessary. See, e.g., People v. Rivera, 71 N.Y.2d 705, 709 (1988) (defendants’ claims of ineffective assistance of counsel held unreviewable on direct appeal where their challenges to counsel’s strategic decisions were based on “supposition and conjecture rather than a thorough evaluation of each claim based on a complete record”). CONCLUSION The order of the Appellate Division should be affirmed. DAVID M. COHN DAVID E. A. CROWLEY Assistant District Attorneys Of Counsel January 13, 2014 Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY:·~ DAVID E. A. CROWLEY Assistant District Attorney -65-