The People, Respondent,v.Ivan Calaff, Appellant.BriefN.Y.February 20, 2014APL-2013-00259 To be argued by CLAUDIA TRUPP (15 Minutes Requested) Gtourt of Rppea~ 6tate of J!letD !ork THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- IVAN CALAFF, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT CLAUDIA TRUPP O/Counsel November 6, 2013 ROBERT S. DEAN Attorney for Defendant-Appellant CENTER FOR ApPELLATE LITIGATION 74 Trinity Place New York, NY 10006 Tel: (212) 577-2523 TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................... iv PRELIMINARY STATEMENT ......................................... 1 JURISDICTIONAL STATEMENT ...................................... 2 QUESTIONS PRESENTED ........................................... 2 PERTINENT STATUTES AND RULES ................................. 2 c.P.L. § 470.60. Dismissal of Appeal ................................ 2 C.P .L.R. § 1101. Motion for Permission to Proceed as a Poor Person; Affidavit; Certificate, Notice; Waiver of Fee; When Motion Not Required. . 3 22 N.Y.C.R.R. 606.5. Duties of Counsel with Respect to Representation of Defendants in Criminal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6 POINT I ....................................................... 6 POINT II ...................................................... 7 STATEMENT OF FACTS ............................................. 8 1993 Plea Proceedings ............................................ 8 The 2004 Trial Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12 The 2012 Motion for the Assignment of Counsel ... . . . . . . . . . . . . . . . . .. 12 The Prosecution's Motion to Dismiss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13 Mr. Calaff's Response to the Prosecution's Motion to Dismiss .......... 14 The Court's Initial Decision on the Motion to Dismiss ................ 18 1 Arguments on Appeal ........................................... 18 The Court's Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20 ARGUMENT ...................................................... 21 POINT I THE APPELLATE DIVISION ABUSED ITS DISCRETION AS A MA ITER OF LAW BY DISMISSING THE APPEAL WHERE THERE WAS NO RECORD EVIDENCE THAT MR. CALAFF VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY WAIVED HIS FUNDAMENTAL RIGHT TO APPEAL. ............................................ 21 A. Mr. CalaffDid Not ''Waive'' His "Fundamental" and "Absolute" Right to Appeal Through Inaction. ................. 21 1. The Prosecution Has Not Presented a Valid Appeal Waiver. 23 2. Mr. Calaff Has Not Waived His Appellate Rights Through Any Conduct Showing Contempt for the Appellate Process ............................................. 23 3. The Appellate Division's Failure to Offer Mr. CalaffThe Opportunity to Avoid Default That It Guarantees to Represented Defendants Violates His Right to Counsel. . . . .. 38 4. The Appellate Division Did Not Satisfy Mr. Calaffs Fundamental and Absolute Right to Appeal by Ignoring Record Evidence, Dismissing His Appeal, and Failing to Decide or Comment on the Merits of His Right to Counsel Claim. ........................... 41 B. In the Alternative, in Light of Subsequent Developments in the Law, Including This Court's Decision in People v. Kordish, The Court Should Overturn People v. West's Rule that Unrepresented Indigent Defendants Have No Right to Counsel When Seeking Access to the Intermediate Appellate Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43 11 POINT II THE PLEA COURT DENIED MR. CALAFF THE ASSISTANCE OF COUNSEL AND DEPRIVED HIM OF HIS RIGHT TO COUNSEL OF HIS CHOICE WHEN IT SUA SPONTE AND WITHOUT CAUSE DISMISSED MR. CALAFF'S ASSIGNED COUNSEL AND IMMEDIATELY APPOINTED ANOTHER LAWYER WHO ACTED AS A MERE CONDUIT FOR A PLEA OFFER TO A SERIOUS FELONY. ................................ 57 A. The Plea Court Deprived Mr. Calaff of His Right to Counsel of His Choice When it Interfered with His Established Relationship with His Original Assigned Counsel by Sua Sponte Dismissing that Counsel Without Cause ................................. 57 B. The Plea Court Functionally Deprived Mr. Calaff of Counsel When It Sua Sponte Dismissed Mr. Calaffs Counsel And Then Allowed Mr. Calaff Only "Nominal" Representation That Served as a "Conduit for Plea Offers." United States v. Cronic, 466 U.S. 648 (1984); Hurrell-Harring v. State, 15 N.Y.3d 8 (2010) ................ 63 CONCLUSION ..................................................... 66 PRINTING SPECIFICATIONS STATEMENT .......................... 67 111 TABLE OF AUTHORITIES CASES Anders v. California, 386 U.S. 738 (1967) ....................................................................... 30 Baker v. Kaiser, 929 F.2d 1495 (10th Cir. 1991) ....................................................... 29,30 Bell v. Cone, 535 U.S. 685 (2002) .............................................................................. 63,66 Berghuis v. Thompkins, 560 U.S. 370 (2010) ................................................................. 27 Brown v. O'Dea, 187 F.3d 572 (6th Cir. 1999) .............................................................. 34 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 ......................................................... 51 Carnley v. Cochran, 369 U.S. 506 (1962) .............................................................. 7, 22,55 Chandler v. Fretag, 348 U.S. 3 (1954) .............................................................................. 62 Cobb v. Ricks, 05 CV 3019, 2008 WL 2156752 (E.D.N.Y. May 22, 2008) .......... 43,54 Davis v. State, 641 A.2d 941 (Md. App. 1994) ............................................................... 53 Degen v. United States, 517 U.S. 820 (1996) .................................................................. 34 Evitts v. Lucey, 469 U.S. 387 (1985) ................................................................................ 56 Faretta v. California, 422 U.S. 806 (1975) ....................................................................... 56 Griffin v. Illinois, 351 U.S. 12,20 (1956) ........................................................................ 56 Halbert v. Michigan, 545 U.S. 605 (2005) ................................................................ passim Hernandez v. United States, 202 F.3d 486 (2d Cir. 2000) ............................................ 32 Hurrell-Harring v. State, 15 N.Y.3d 8 (2010) .......................................................... passim Mathews v. Eldridge, 424 U.S. 319 (1976) ...................................................................... 49 IV McHale v. United States, 175 F.3d 115 (2d Cit. 1999) ............................................ 29,37 Miller v. Smith, 115 F.3d 1136 (4th Cit. 1997) ......................................................... 52,53 Miranda v. Arizona, 384 U.S. 436 (1966) ........................................................................ 27 Norris v. Wainright, 588 F.2d 130 (5th Cit. 1979) ......................................................... 53 People v. Adams, 12 N.Y.2d 417 (1963) ......................................................................... 32 People v. Aiken, 45 N.Y.2d 394 (1978) ........................................................................... 55 People v. Arroyave, 49 N.Y.2d 264 (1980) ............................................................... 59, 62 People v. Arroyo, 98 N.Y.2d 101 (2002) ......................................................................... 55 People v. Bing, 76 N.Y.2d 331 (1990) ...................................................................... passim People v. Bradshaw, 18 N.Y.3d 257 (2011) ................................................... 6,22,23,54 People v. Calaff, 103 A.D. 3d 500 (1st Dep't 2013) ....................................................... 18 People v. Calaff, 30 A.D.3d 193 (1st Dep't 2006) ................................................... 12, 13 People v. Callahan, 80 N.Y.2d 273 (1992) ...................................................................... 23 People v. Callaway, 24 N.Y.2d 127 (1969) ...................................................................... 19 People v. Calvi, 89 N.Y.2d 868 (1996) ............................................................................ 23 People v. Childs, 247 A.D.2d 319 (1st Dep't 1998) ....................................................... 58 People v. Damiano, 87 N.Y.2d 477 (1996) ............................................................... 46,52 People v. Delarosa, 282 A.D.2d 296 (1st Dep't 2001) .................................................. 26 People v. Dennis, 265 A.D.2d 271 (1st Dep't 1999) ..................................................... 26 People v. DeRenzzio, 14 N.Y.2d 732 (1964) ............................................................ 32,40 v People v. Dunbar, 104 A.D.3d 198(2nd Dep't 2013) ............................................ 27,28 People v. Griffin, 92 A.D.3d 1 (1st Dep't 2011), aff'd 20 N.Y.3d 626 (2013) ..... passim People v. Hall, 200 A.D.2d 474 (1st Dep't 1994) .................................................... 31,32 People v. Hannigan, 7 N .Y.2d 317 (1960) ...................................................................... 62 People v. Harrison, 85 N.Y.2d 794 (1995) ...................................................................... 31 People v. Hill, 8 N.Y.2d 935 (1960) ................................................................................. 27 People v. Hobson, 39 N.Y.2d 479 (1976) ................................................................. 46,56 People v. Johnson, 37 N.Y.2d 778 (1975) ...................................................................... 55 People v. Johnson, 69 N .Y.2d 339 (1987) ....................................................... 6, 7, 22, 26 People v. Kinchen, 60 N.Y.2d 772 (1983) ...................................................................... 62 People v. Knapp, 57 N.Y.2d 161 (1982) ......................................................................... 62 People v. Knowles, 88 N.Y.2d 763 (1996) ................................................... 58,59,60,63 People v. Kordish, Slip. Op., SSM No. 25, Court of Appeals Order of Oct. 17, 2013 .................................................................................................... 35,42,48,50 People v. McLean, 15 N.Y.3d 117 (2010) ....................................................................... 62 People v. Montgomery, 24 N.Y.2d 130 (1969) ....................................................... passim People v. O'Bryan, 26 N.Y.2d 95 (1970) ........................................................................ 27 People v. Radcliffe, 298 A.D.2d 533 (2nd Dep't 2002) ................................................ 37 People v. Ramsey, 23 N.Y.2d 656 (1968) ........................................................................ 32 People v. Seaberg, 74 N.Y.2d 1 (1989) ............................................................................ 47 VI People v. Syville, 15 N.Y.3d 391 (2010) .......................................................................... 56 People v. Taveras, 10 N.Y.3d 227 (2008) ................................................................. passim People v. Thomas, 47 N.Y.2d 37 (1979) ......................................................................... 36 People v. Turley, 153 A.D. 671 (1st Dep't 1912) ........................................................... 36 People v. Ventura, 17 N.Y.3d 675 (2011) ................................................................ passim People v. Volious, 33 A.D.2d 976 (4th Dep't 1970) ...................................................... 32 People v. West, 100 N.Y.2d 23 (2003) ..................................................................... passim People v. West~ 11 N.Y.2d 23 (2003) .............................................................................. 13 Powell v. State of Alabama, 287 U.S. 45 (1932) ............................................................. 62 Restrepo v. Kelly, 178 F.3d 634 (2d Cit. 1999) .................................................. 32, 39,40 Rodriguez v. People of New York, Slip. Op. 2004 WL 5575050 (S.D.N.Y., Sept. 7, 2004) ................................................................................................... 29 Rodriquez v. United States, 395 U.S. 327 (1969) ........................................................... 41 Smith v. Robbins, 528 U.S. 259 (2000) ........................................................................... 56 Swenson v. Bosler, 386 U.S. 258 (1967) .................................................................... 26, 55 Taveras v. Smith~ 463 F.2d 141 (2d Cit. 2006) ............................................................... 35 Turnerv. United States, 961 F.Supp. 189 (E.D. Mich. 1997) ................................ 31,32 United States v. Cronic, 466 U.S. 648 (1984) .......................................................... passim United States v. McMahon, No. 04-5011,2005 WL 11506, Slip. Op. Vll (10th Cir. 2005) ................................................................................................................... 49 United States v. Smith, 419 F.3d 521 (6th Cir. 2005) .................................................... 34 United States v. Wenger, 58 F.3d 280 (7th Cir. 1995) ................................................... 54 Williams v. Birkett, 697 F. Supp.2d 716 (E.D. Mich. 2010) ................................... 64,65 STATUTES C.P.L. §400.15 ..................................................................................................................... 12 C.P.L. § 400.16 .................................................................................................................... 12 C.P.L. § 440.10 ...................................................................................................................... 5 C.P.L. § 440.20 ...................................................................................................................... 5 C.P.L. § 450.10 .................................................................................................................... 31 C.P.L. § 460.10 ...................................................................................................................... 5 C.P.L. § 470.60 ......................................................................................... 1,2,20,35,36,44 C.P.L.R. § 1101 ........................................................................................................... 1,3,50 C.P.L.R. § 5501 ................................................................................................................... 41 N.Y. Const. Art. I, § 6 ........................................................................................................ 62 N.Y. Const., Art. VI, § 5 ................................................................................................... 41 RULES N.Y. Ct. Rules § 600.12 ............................................................................................... 38,39 Md. Ct. Rule 4-21 (b) .......................................................................................................... 53 V111 Mich. Rules of Ct. § 6.425 ................................................................................................. 45 REGULATIONS 22 N.Y.C.R.R. 606.5 ........................ .' ................................................................................ 1,4 IX STATE OF NEW YORK COURT OF APPEALS ---------------------------------------------------------------------------------}C THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- IVAN CALAFF, Defendant-Appellant. ---------------------------------------------------------------------------------}C PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, granted September 9, 2013 (Al),l this appeal is taken from an order of the Appellate Division, First Department, entered February 19,2013 (A2), dismissing the appeal Mr. Calaff took from a judgment of Supreme Court, New York County, rendered March 24, 1993, convicting him, after a guilty plea, of attempted burglary in the second degree, and sentencing him to an indeterminate prison term of three to six years. Id. On October 10, 2013, this Court granted Mr. Calaffs motion for assignment of counsel and assigned Robert S. Dean, Center for Appellate Litigation, as counsel on appeal. 1 Parenthetical references preceded by "A" are to Defendant-Appellant's Appendix. 1 Mr. Calaff is currently incarcerated pursuant to a May 19,2004, conviction and sentence for second-degree burglary (A38). JURISDICTIONAL STATEMENT This Court has jurisdiction to entertain this appeal pursuant to c.P.L. § 470.60(3), which authorizes an appeal to this Court from an intermediate appellate court dismissing an appeal thereto, provided a certificate granting leave to appeal has been issued. QUESTIONS PRESENTED 1. Whether the Appellate Division abused its discretion as a matter of law where it dismissed Mr. Calaff's appeal although there was no record evidence that he voluntarily, knowingly, and intelligently waived his fundamental right to appeal? 2. Whether the plea court denied Mr. Calaff the assistance of counsel and deprived him of his right to counsel of his choice when it sua sponte and without cause dismissed Mr. Calaff's assigned attorney and immediately appointed another one who acted as a mere conduit for a plea offer to a serious felony? PERTINENT STATUTES AND RULES C.P.L. § 470.60. Dismissal of Appeal 1. At any time after an appeal has been taken and before determination thereof, the appellate court in which such appeal is pending may, upon motion of the respondent or upon its own motion, dismiss such appeal upon the ground of mootness, lack of jurisdiction to determine it, failure 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. 2 2. Such motion must be made upon reasonable notice to the appellant and with opportunity to be heard. If the people are the appellant, such notice must be served upon the appropriate district attorney either personally or by ordinary mail. If the appellant is a defendant, such notice must be served upon him by ordinary mail at his last known place of residence or, if he is imprisoned, at the institution in which he is confined, and similar notice must be served upon the attorney, if any, who last appeared for him. Upon determination of the motion, a copy of the order entered thereon must similarly be served. 3. Provided that a certificate granting leave to appeal is issued pursuant to this subdivision, an appeal may be taken, in the 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. Such appeal may be based 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. A certificate granting leave to appeal from such an order of dismissal may be issued only by a judge of the court of appeals upon an application made in the manner prescribed in paragraph (b) of subdivision three of section 460.20. Upon such an appeal, the court of appeals must either affirm or reverse the intermediate appellate court order. C.P.L.R. § 1101. Motion for Permission to Proceed as a Poor Person; Mfidavit; Certificate, Notice; Waiver of Fee; When Motion Not Required. (a) Motion; affidavit. Upon motion of any person, the court in which an action is triable, or to which an appeal has been or will be taken, may grant permission to proceed as a poor person. Where a motion for leave to appeal as a poor person is brought to the court ih which an appeal has been or will be taken, such court shall hear such motion on the merits and shall not remand such motion to the trial court for consideration. The moving party shall file an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, 3 fees and expenses. An executor, administrator or other representative may move for permission on behalf of a deceased, infant or incompetent poor person. (e) When motion not required. Where a party is represented in a civil action by a legal aid society or a legal services or other nonprofit organization, which has as its primary purpose the furnishing of legal services to indigent persons, or by private counsel working on behalf of or under the auspices of such society or organization, all fees and costs relating to the filing and service shall be waived without the necessity of a motion and the case shall be given an index number, or, in a court other than the supreme or county court, an appropriate filing number, provided that a determination has been made by such society, organization or attorney that such party is unable to pay the costs, fees and expenses necessary to prosecute or defend the action, and that an attorney's certification that such determination has been made is filed with the clerk of the court along with the summons and complaint or summons with notice or third-party summons and complaint or otherwise provided to the clerk of the court. Where an attorney certifies, pursuant to section eleven hundred eighteen of the family court act, and in accordance with procedures of the appropriate appellate division, that a party or child who is the subject of an appeal has been represented in the family court by assigned counsel or by a legal aid society or a legal services or other nonprofit organization, which has as its primary purpose the furnishing of legal services to indigent persons, or by private counsel working on behalf of or under the auspices of such society or organization, and, in the case of a counsel assigned to an adult party, that the party continues to be indigent, the party or child shall be presumed eligible for poor person relief pursuant to this section. 22 N.Y.C.R.R. 606.5. Duties of Counsel with Respect to Representation of Defendants in Criminal Actions a. Duties of assigned or retained counsel. 1. It shall be the duty of counsel assigned to or retained for the defense of a defendant in a criminal action or proceeding to represent defendant in the trial 4 court until the action or proceeding has been terminated in that court, and to comply with the provisions of paragraph (b) (1) or (d) (2) of this section, after which the duties of assigned counsel shall be ended. 2. It shall be the duty of counsel assigned to prosecute or defend an appeal on behalf of an indigent defendant to accept said assignment and to prosecute the appeal until entry of the order of the appellate court terminating the appeal, and to comply with the provisions of paragraph (b) (2) or (d) (2) of this section, after which the duties of assigned counsel shall be ended. b. Notification of right to appeal or to apply for a certificate granting leave to appeal. Obligation to flle proflle statement with notice of appeal. 1. After conviction and sentence. Where there has been a conviction after trial or otherwise .. .it shall be the duty of counsel, retained or assigned, immediately after the pronouncement of sentence ... to advise the defendant or parolee in writing of his right to appeal or to apply for a certificate granting leave to appeal pursuant to subdivision 4 of section 460.10 of the Criminal Procedure Law, the time limitations involved, in the manner of instituting an appeal and of obtaining a transcript of the testimony, and of the right of a person who has an absolute right to appeal or has received a certificate granting leave to appeal and is unable to pay the cost of an appeal to apply for leave to appeal as a poor person. It shall also be the duty of such counsel to ascertain whether defendant or parolee wishes to appeal or to apply for a certificate granting leave to appeal, and, if so, to serve and flle the necessary notice of appeal from a judgment of conviction or determination revoking parole or to apply for a certificate granting leave to appeal from the denial of a motion made pursuant to section 440.10 or section 440.20 of the Criminal Procedure Law and, if granted, to file the necessary certificate and notice of appeal within the time limitations provided for in subdivision 4 of section 460.10 of the Criminal Procedure Law .... 5 SUMMARY OF ARGUMENT POINT I The Appellate Division erroneously found that Mr. Calaff s delay in perfecting the appeal vitiated his "absolute" and "fundamental" right to appeal through waiver despite the "invariable importance" of that right and the "distinct role assumed by the Appellate Divisions [which] makes access to intermediate appellate courts imperative." People v. Ventura, 17 N.Y.3d 675, 679-80 (2011). Contrary to the Appellate Division's finding that Mr. Calaff abandoned his appeal, Mr. Calaff wanted to appeal and trusted his attorney's promise to "take care of it." Mr. Calaff did not waive his right to appeal through either of the two means for doing so: (1) through a valid appeal waiver where the right to appeal is adequately explained and the judge has guaranteed the voluntariness of the waiver; People v. Bradshaw, 18 N.Y.3d 257, 264-67 (2011); or (2) through engaging in conduct that is openly contemptuous of appellate proceedings, People v. West, 100 N.Y.2d 23, 25, 27-28 (2003). The record simply does not contain a "knowing, intelligent and voluntary" waiver of Mr. Calaffs absolute constitutional right to appeal a criminal conviction. Bradshaw, 18 N.Y.3d at 259; Halbert v. Michigan, 545 U.S. 605, 623-24 (2005); see also People v. Johnson, 69 N.Y.2d 339, 339 (1987). In 6 finding abandonment despite the absence of either a waiver of appeal or contemptuous conduct, the Appellate Division ignored the well-settled principle that forbids presuming waiver of an appeal from a silent record, see Johnson, 69 N.Y.2d at 339; Halbert, 545 u.s. at 623-24; failed to "indulge every reasonable presumption against waiver of fundamental constitutional rights;"and impermissibly "presume[d]" that Mr. Calaffhad "acquiesce[d] in the loss of [his] fundamental rights." Carnley v. Cochran, 369 U.S. 506, 514 (1962) (internal citations omitted). The Appellate Division's order should be reversed, Mr. Calaff's appeal reinstated and heard on its merits. POINT II The plea court peremptorily dismissed the counsel with whom Mr. Calaffhad developed a case strategy, immediately substituted new counsel who was obviously unprepared for the task, and acted as "a mere conduit for plea offers," having conducted no factual or legal investigation. In doing so, the plea court deprived Mr. Calaff of the counsel of his choice in violation of People v. Griffin, 92 A.D.3d 1,5 (1st Dep't 2011), aff'd 20 N.Y.3d 626, 632 (2013), and functionally deprived Mr. Calaff of any counsel in violation of United States v. Cronic. 466 U.S. 648 (1984). 7 STATEMENT OF FACTS 1993 Plea Proceedings OnJanuary 14, 1993, Mr. Calaff was arrested and charged with a single count of burglary in the second degree. See Brief for Defendant-Appellant at 3. The court assigned Bradley Dorff to represent him, and, after discussing the matter with Mr. Dorff, Mr. Calaff pleaded not guilty at his arraignment. Id. The matter was then adjourned until February 24, 1993. Id. By that date, Mr. Calaff and Mr. Dorff had been working together for weeks. Id. For a reason that the record does not reveal, Mr. Dorff did not appear promptly at the February 24 court date. (AS). The court immediately ordered substitution of counsel: THE COURT: Is Mr. Dorf [sic] here? Have we seen him at all? Excuse me, have we heard from Mr. Dorf? COURT OFFICER: I haven't seen Mr. Dorf, Your Honor. THE COURT: Mr. Dorf is relieved. Mr. Klang is assigned. Come up, Mr. Klang. 8 The court did not seek Mr. Calaff's consent or input before ordering reassignment. Id. Nor did the court postpone the hearing in order to give Mr. Klang time to familiarize himself with Mr. Calaff's case. Id. Within hours of his assignment, Mr. Klang withdrew Mr. Calaff's not-guilty plea and entered instead a plea of guilty to attempted burglary in the second degree (A8). During the plea, it became clear that Mr. Klang misunderstood the terms of the plea he recommended, having failed to ask the court or the prosecutor about the terms of the offer: THE COURT: The record should indicate I intend to sentence [Mr. Calaff] as a second violent felony offender to an indeterm[inate] sentence with a minimum of three years, and a maximum of six years. MR. KLANG: Judge, I thought it was two. THE COURT: Not two and a half to five, three to six. MR. KLANG: Judge -- THE COURT: If you don't want the plea take it back. MR. KLANG: Your Honor, my client believes [that] earlier [in] the first call of this case there was an offer made of two and a half, and he was under the impression of two and a half to five. 9 THE COURT: No such offer has ever been made in this part .... He is not going to get two and a half to five now or ever. If he wants to go to trial that's fine. The minimum offer is three to six. If he does not want that, that minimum offer will be withdrawn. Either take it or don't take it. Those are your choices. (A 11-12, 16). Despite the harsher sentence, Mr. Klang spoke briefly with Mr. Calaff and then requested to proceed with the plea (A17). The court imposed an indeterminate sentence of three to six years' imprisonment on March 24, 1993 (A26). At the sentencing hearing, Mr. Calaff was handed a single document regarding his appellate rights: THE COURT: ... Counsel, please advise him of his [a]ppellate rights and advise me that you have done so. MR. KLANG: 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 the appeal. Id. The written notice was a "Notice of Right to Appeal" ("Notice") form, which likely read, 1 in relevant part: You have a right to appeal a conviction ... In order to exercise this right, you must file a NOTICE OF APPEAL within thirty (30) days . ... If you are without funds, after the notice 1 Counsel contacted the Office of Court Administration but has been unable to obtain the Notice of Right to Appeal form as it existed in 1993. The quoted language is taken from the current Notice of Right to Appeal form. 10 of appeal has been flied, you must write to the Appellate Division requesting that counsel be assigned to you for the purpose of appeal ... You should request that you be granted permission to appeal upon the original record. You should mention that you are without funds with which to retain counsel or to purchase a transcript of the proceedings. State fully your financial circumstances, explaining why you cannot afford to hire an attorney for an appeal or purchase a transcript of the proceedings. You must write this letter yourself. (A29). On the record, neither the plea court nor Mr. Calaff's counsel, Bruce Klang, discussed the Notice form with Mr. Calaff, otherwise explained it to him, explained the appellate process, encouraged him to apply for appellate counsel, or informed him that if he did not apply for counsel and poor person's relief, he would be unable to perfect his appeaL Id. Mr. Klang filed a notice of appeal on Mr. Calaff's behalf indicating he wished to appeal (A30), but neither perfected the appeal, nor filed an application for poor person's relief and the assignment of counsel on Mr. Calaff's behalf. Not until the People moved to dismis his appeal some 19 years later, see post, did Mr. Calaff ever learn, either from a court or the District Attorney, that his appeal was in danger of being abandoned. 11 The 2004 Trial Proceedings On September 30, 2004, Mr. Calaff was convicted of burglary in the second degree, a violent felony (A38). During sentencing for that conviction, the People ftled a statement pursuant to §§ 400.15 and 400.16 of the Criminal Procedure Law ("C.P.L.") alleging that Mr. Calaff was a persistent violent felony offender based on the instant conviction from 1993 and an earlier conviction from 1992.2 See Defendant-Appellant's Brief in People v. Calaff, 30 A.D.3d 193 (1st Dep't 2006) at 12. Defense counsel raised no challenge to the 1993 conviction. See id. at 13-14. The sentencing judge found Mr. Calaff to be a persistent violent felony offender and sentenced him to 16 years to life imprisonment. See id. at 14. Current appellate counsel, the Center for Appellate Litigation ("CAL"), represented Mr. Calaff on his appeal from that 2004 conviction. The 2012 Motion for the Assignment of Counsel In 2012, Mr. Calafflearned for the first time that his 1993 appeal had never been perfected, through a conversation with CAL. See A31-33. He immediately applied for poor person's relief and the appointment of counsel. Id. In that application, Mr. Calaff explained that his court-appointed plea counsel had led Mr. Calaff to believe that he 2 Mr. Calaff never appealed from this conviction. In a 2000 conviction for bail jumping in the second degree, Mr. Calaff waived his right to appeal (A 73). 12 would take all the steps necessary to appeal the case. Id. at ~~ 3-S. Mr. Calaff did not hear from his plea counsel again and did not know what had happened to his appeal. Id. at ~S. Mr. Calaff asserted that he still wished to appeal his case, as originally indicated by the notice of appeal his attorney timely filed in 1993. Id. at A33. The Prosecution's Motion to Dismiss The prosecution opposed Mr. Calaffs request for poor person's relief and the appointment of counsel, and moved to dismiss Mr. Calaffs appeal for want of prosecution (A41;A4S). According to the prosecution, "after 19 years of inaction", Mr. Calaffhad "effectively abandoned his appeal." (AS1), citing People v. West, 11 N.Y.2d 23,26-29 (2003). Relying also upon People v. Taveras, 10 N.Y.3d 227, 233 (2008), the prosecution argued that Mr. Calaffs actions had so delayed the administration of justice that the prosecution would be prejudiced should a retrial prove necessary. Id. at ~13 (AS2). In advancing these arguments, the prosecution" d[id] not know" whether it could present one of its witnesses and stated that the original prosecutors were no longer at the office and that the passage of time "likely" had caused memories to fade. Id. The prosecution did not submit an affidavit from Mr. Calaffs assigned plea counsel rebutting Mr. Calaffs claims that he had been misled by counsel. 13 Mr. Calaff's Response to the Prosecution's Motion to Dismiss In response to the motion to dismiss, Mr. Calaff set forth both an opposition and a supplemental sworn affidavit (A56; A 70). Mr. Calaffs opposition to the motion to dismiss explained that his plea proceeding contained clear error, resulting in severe and continuing consequences to him (A57). Mr. Calaffs supplemental sworn affidavit set forth that his assigned attorney's statements both before the plea and after sentencing led him "to believe that [plea counsel] would take care of doing [his] appeal and that [he] did not need to do anything further." (A 71 at,-r,-r 4,6-8). Specifically, Mr. Calaff set forth the following facts: in order to convince Mr. Calaff to plead guilty in the 1993 proceeding, Mr. Klang promised repeatedly that "we," i.e. he and Mr. Calaff, "would win on appeal." Id. at ,-r4. Immediately after being sentenced, Mr. Calaff asked Mr. Klang ''What happens now about the appeal thing you mentioned?" (A72 at ,-r8). Mr. Klang replied "Don't worry about that, I'll take care of it." Id. at ,-r,-r6-7. Mr. Klang did not explain what an appeal entailed or tell Mr. Calaff that he needed to apply for assigned counsel to move forward with his appeal. Id. At the time, Mr. Calaff was completely unfamiliar with the appellate 14 process. Id. He had never before appealed a conviction nor interacted with an appellate attorney. Id. Mr. Calaff did not hear from Mr. Klang (A 73 at ~11). However, he "trusted [his] attorney to do what he had to do for [his] appeal, and to contact [him] later to let [him] know if [they] had won the case." Id. at ~8 (A 72). As the years passed and he did not hear from Mr. Klang, Mr. Calaff wondered what had happened to his appeal but thought that Mr. Klang would contact him if he were needed. Id. at ~1 O. He explained that he was afraid to contact anyone at the court about his case because his original assigned counsel had warned him not to speak to anyone about his case. Id. In the 2004 proceedings, Mr. Calaff understood that, to obtain appellate counsel, he had to move for poor person's relief. Id. at ~13. Mr. Calaff assumed that Mr. Klang had ftled the necessary forms for him back in 1993. Calaff at ~14 (A74). Because so many years had passed without word from Mr. Klang, Mr. Calaffbelieved that the appeal had been heard and lost. Id. While awaiting trial in his 2004 case, Mr. Calaff learned from a fellow inmate that he could ftle a coram nobis petition to challenge his 1993 conviction, which was distinct 15 from whatever appeal he still assumed had been taken and lost. Id. at ~15. Mr. Calaff contacted his attorney at the time, Dale Frederick, regarding the potential coram nobis petition. Id. Mr. Frederick declined to represent Mr. Calaff on the petition. Id. In 2008, Mr. Calaff sent a letter to the Legal Aid Society requesting information about his 1993 case and requesting his file. Id. at ~16 (A 75). Several months later, the Legal Aid Society wrote back to inform Mr. Calaff that it had not represented him and therefore could not provide his flie. Id.; A79. The Legal Aid Society provided Mr. Klang's name and contact information. Id. The Legal Aid Society forwarded Mr. Calaffs original request to Mr. Klang, and Mr. Calaff waited for a reply. Id.; see also A75 at ~17. Mr. Klang did not reply (A75 at ~17). When he did not receive a reply, Mr. Calaff wrote to Mr. Klang in September 2008 (A 75 at ~18; A80). Mr. Calaff described what he remembered about the case and asked Mr. Klang what he remembered, also requesting his complete case flie. Id. Again, Mr. Klang did not respond (A75 at ~18). In November 2008, Mr. Calaff wrote to him again, once more asking for his case file. Id.; see also A82. Mr. Calaff 16 pleaded that even if Mr. Klang did not feel comfortable discussing his recollection of the case, Mr. Calaff still wished to see any ftles Mr. Klang had retained regarding his plea. Id. For a third time, Mr. Klang did not respond (A75 at ~19). Mr. Calaff took Mr. Klang's silence as a sign that he did not believe there had been anything meritorious to appeal. Id. Nevertheless, in 2012, Mr. Calaff made another attempt to get legal advice regarding any legal challenge he might bring to his 1993 conviction. Id. at ~20. He wrote letters to the Legal Aid Society and also to the Center for Appellate Litigation, seeking their advice regarding whether a constitutional error had occurred in his 1993 case based on the dismissal of his original attorney and the appointment of Mr. I