The People, Respondent,v.Ivan Calaff, Appellant.

Brief

N.Y.February 20, 2014

APL-2013-00259 To be argued by CLAUDIA S. TRUPP (15 Minutes) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - IVAN CALAFF, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 74 Trinity Place New York, NY 10006 TEL (212) 577-2523 FAX (212) 577-2535 CLAUDIA S. TRUPP Of Counsel SARA SIEGEL Legal Fellow Certified for Admission, Not Yet Admitted January 29, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I M R . C A L A F F N E V E R I N TE NTIO NA LLY RELINQUISHED THE RIGHT TO APPEAL BUT RATHER BELIEVED HIMSELF TO BE EXERCISING IT; HIS PROCEDURAL DEFAULT IS THE RESULT NOT ONLY OF HIS PLEA COUNSEL’S MISLEADING ASSURANCES BUT OF A COUNSEL APPOINTMENT SYSTEM WHOSE UNCONSTITUTIONALITY THE PEOPLE DO NOT DISPUTE IN FOUR KEY RESPECTS.. . . . . 1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Mr. Calaff Never Intentionally Relinquished his Right to Attack his 1993 Conviction; the People’s Theory of “Gamesmanship” Rests on Misrepresentations and is Not Supported by the Record.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Contrary to the People’s Argument, Due Process Does Regulate Indigent Defendants’ Loss of the Fundamental and Absolute Right to Appeal... . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 C. There is No Dispute that the Current Scheme for Assignment of Appellate Counsel is Unconstitutional in at least Four Respects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 1. Respondent Does Not Contest that the Average Indigent Defendant is Unable to Comprehend the Instructions that Are Supposed to Safeguard his Right to Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 2. Respondent Does Not Contest that the Current i Assignment of Counsel System Unconstitutionally Allows Defendants to Proceed on Their Noticed Appeals Pro Se Without the Required Safeguard of Court Inquiry into their Understanding and Competence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 3. Respondent Does Not Contest that a System Allowing Indigents to Forfeit Appellate Counsel Through a Failure to Request it is Unconstitutional.. . . . . . . . . . . 22 4. Respondent Does Not Contest that a System Providing Notice of Default and an Opportunity to Be Heard to Represented Defendants Violates Equal Protection and Due Process.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 5. Respondent Does Not Contest that it is Fundamentally Unfair to Automatically Appoint Appellate Counsel to Indigent Civil Litigants While Failing to Do So for Indigent Criminal Defendants.. . . . . . . . . . . . . . . . . . . 23 D. Respondent Fails to Meaningfully Distinguish Any of the Intervening Precedent that Abrogates the Court’s Rule in People v. West.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 E. Respondent’s Remaining Contentions are Unpreserved.. . . . 26 POINT II THE PLEA COURT’S SUA SPONTE DISMISSAL OF MR. CALAFF’S ASSIGNED COUNSEL, WITHOUT MAKING ANY THRESHOLD FINDINGS REGARDING THE REASONS FOR THAT DISMISSAL, VIOLATED MR. CALAFF’S SIXTH AMENDMENT RIGHTS. MR. CALAFF THEN WAS DEPRIVED OF COUNSEL IN VIOLATION OF UNITED STATES V. CRONIC WHEN SUBSTITUTE COUNSEL ACTED AS A MERE CONDUIT FOR A PLEA OFFER. THESE C L A I M S A R E N O T S U B J E C T T O PRESERVATION, PREJUDICE OR HARMLESS ii ERROR ANALYSIS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 A. The Constitutional Right to Counsel-of-Choice Does Not Require Preservation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 B. The Supreme Court and Other State High Courts Have Rejected Each of Respondent’s Objections to Finding a Counsel-of-Choice Violation on These Facts.. . . . . . . . . . . . . 29 C. In Response to this Court’s Concern that Defendants Are Deprived of Counsel When Their Attorneys Merely Act as Conduits for Plea Offers, the People Say Only that Mr. Calaff’s Plea Counsel “Was Active and Engaged and…Made Sure That [Mr. Calaff] Was Adequately Informed about the Offer Before the Plea Deal Was Finalized.”. . . . . . . . . . . . . . . . . . . . . . . . . . 33 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 PRINTING SPECIFICATIONS STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 1A iii TABLE OF AUTHORITIES CASES Baker v. Kaiser, 929 F.2d 1495 (10th Cir. 1991). ...................................................... 6, 25 Barker v. Wingo, 407 U.S. 514 (1972). ............................................................................. 7 Carnley v. Cochran, 369 U.S. 506 (1962). ...................................................................... 10 Cobb v. Ricks, 05 CV 3019, 2008 WL 2156752 (E.D.N.Y. May 22, 2008). ........ 9, 15 Degen v. United States, 517 U.S. 820 (1996)............................................................. 4, 12 Edwards v. Arizona, 451 U.S. 477 (1981). ................................................................. 4, 15 Estelle v. Dorrough, 420 U.S. 534 (1975). ................................................................. 7, 16 Evitts v. Lucey, 469 U.S. 387 (1985). .............................................................................. 14 Goeke v. Branch, 514 U.S. 115 (1995)........................................................................ 7, 16 Griffin v. Illinois, 351 U.S. 12 ) (1956). .......................................................................... 18 Halbert v. Michigan, 545 U.S. 605 (2005). ........................................................ 20, 21, 24 Harling v. United States, 387 A.2d 1101 (D.C. 1978). ................................................. 30 Hurrell-Harring v. State, 15 N.Y.3d 8 (2010). ............................................................... 33 Johnson v. Zerbst, 304 U.S. 458 (1938). .................................................................... 4, 15 Mayer v. City of Chicago, 404 U.S. 189 (1971). ...................................................... 14, 23 McHale v. United States, 175 F.3d 115 (2d Cir. 1999). ............................................. 5, 6 McKinnon v. State, 526 P.2d 18 (Alaska 1974). ........................................................... 30 Ortega-Rodriguez v. United States, 507 U.S. 234 (1993). ................................ 7, 12, 16 iv People v. Alexander, 97 N.Y.2d 482 (2002). ................................................................... 7 People v. Arroyave, 49 N.Y.2d 264 (1980). ................................................................... 30 People v. Bleakley, 34 N.Y.2d 311 (1974). ....................................................................... 4 People v. Burton, 28 A.D.3d 203 (1st Dep’t 2006). ............................................... 32, 33 People v. Callahan, 80 N.Y.2d 273 (1992). ......................................................... 4, 15, 17 People v. Case, 42 N.Y.2d 98 (1977). ............................................................................... 4 People v. Cortez, ___ N.Y.3d ___ (Jan. 21, 2014). .................................................. 4, 10 People v. De Renzzio, 23 A.D.2d 842 (1st Dep’t 1965)................................................ 7 People v. Delarosa, 282 A.D.2d 296 (1st Dep’t 2001). .................................................. 3 People v. Dennis, 265 A.D.2d 271 (1st Dep’t 1999). ..................................................... 3 People v. Espinal, 10 A.D.3d 326 (1st Dep’t 2004). .................................................... 30 People v. Griffin, 92 A.D.3d 1(1st Dep’t 2011), aff’d 20 N.Y.3d 626 (2013) . ....... 29 People v. Gruden, 42 N.Y.2d 214 (1977). ...................................................................... 26 People v. Hagos, 250 P.3d 596 (Colo. App. 2009). ...................................................... 30 People v. Jackson, 78 N.Y.2d 638 (1991). ........................................................................ 7 People v. Johnson, 547 N.W.2d 65 (Mich. App. 1996). .............................................. 33 People v. Johnson, 69 N.Y.2d 339 (1987)........................................................................ 3 People v. Kassebaum, 95 N.Y.2d 611 (2001). ............................................................... 15 People v. Kinchen, 60 N.Y.2d 772 (1983). .................................................................... 26 People v. Kordish, Slip. Op. SSM No. 25 (October 17, 2013). ................................. 25 v People v. Lopez, 71 N.Y.2d 662 (1988). .......................................................................... 7 People v. Lynn, 28 N.Y.2d 196 (1971). .................................................................... 13, 14 People v. Montgomery, 24 N.Y.2d 130 (1969). .................................................... 3, 4, 15 People v. O’Bryan, 26 N.Y.2d 95 (1970).......................................................................... 3 People v. Ozuna, 7 N.Y.3d 913 (2006)........................................................................... 11 People v. Patterson, 39 N.Y.2d 288 (1976).................................................................... 25 People v. Pollenz, 67 N.Y.2d 264 (1986). ...................................................................... 17 People v. Radcliffe, 298 A.D.2d 533 (2d Dep’t 2002). ................................................ 11 People v. Rivera, 39 N.Y.2d 19, 522 (1976)................................................................... 14 People v. Rodriguez, 50 N.Y.2d 553 (1980). ................................................................. 15 People v. Seaberg, 74 N.Y.2d 1 (1989). ............................................................................ 4 People v. Taveras, 10 N.Y.3d 227 (2008). .................................................................. 7, 28 People v. Tineo, 64 N.Y.2d 531 (1985). ......................................................................... 28 People v. Ventura, 17 N.Y.3d 675 (2011). ............................................................. 3, 4, 17 People v. Volious, 33 A.D.2d 976 (4th Dep’t 1970). ..................................................... 7 People v. West, 100 N.Y.2d 23 (2003)....................................................... 8, 9, 15, 19, 24 Rodriguez v. People of New York, Slip. Op. 2004 WL 5575050 (Wood, J., Sept. 7, 2004). ...................................................................................................................................... 5 Smith v. Robbins, 528 U.S. 259 (2000)..................................................................... 14, 18 Smith v. Superior Court of Los Angeles Cnty., 68 Cal. 2d 547 (1968). .............. 29, 30 vi Taveras v. Smith, 463 F.2d 141 (2d Cir. 2006). .................................................. 3, 16, 28 U.S. v Gonzalez-Lopez, 548 U.S. 140 (2006). ......................................................... 31, 32 United States v. Cronic, 466 U.S. 648 (1984). ............................................................... 33 United States v. McMahon, No. 04-5011, 2005 WL 115506 (10th Cir. 2005). . 24, 25 West v. Breslin, No. 60 Civ. 4167, 2008 WL 110947 (S.D.N.Y. Jan. 2, 2008). ....... 20 West v. Breslin, 410 Fed. App’x 393 (2d Cir. 2011). .................................................... 20 STATUTES 18 U.S.C. 3006A(c). ............................................................................................................ 25 C.P.L. § 470.60. ................................................................................................................... 11 CPL 450.10. ......................................................................................................................... 17 RULES N.Y. Ct. Rules § 600.12(c)(2)-(4). .................................................................................... 22 OTHER Black’s Law Dictionary (9th Ed. 2009) . ....................................................................... 16 vii COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : APL-2013-00259 Respondent, : DEFENDANT- APPELLANT -against- : REPLY BRIEF IVAN CALAFF, : N.Y. COUNTY IND. NO. 524/94 Defendant-Appellant. : --------------------------------------------------------------------X PRELIMINARY STATEMENT This brief is submitted in reply to Respondent’s Brief (“R.B.”), submitted to the Court on January 14, 2014. 1 REPLY ARGUMENT POINT I MR. CALAFF NEVER INTENTIONALLY RELINQUISHED THE RIGHT TO APPEAL BUT RATHER BELIEVED HIMSELF TO BE EXERCISING IT; HIS PROCEDURAL DEFAULT IS THE RESULT NOT ONLY OF HIS PLEA COUNSEL’S MISLEADING ASSURANCES BUT OF A COUNSEL APPOINTMENT SYSTEM WHOSE UNCONSTITUTIONALITY THE PEOPLE DO NOT DISPUTE IN FOUR KEY RESPECTS. Mr. Calaff’s original brief to the court is referred to as “Appellant’s Brief” or “A.B.” in this1 Reply. 1 Introduction In Point I of his original brief, Mr. Calaff argued that it was an abuse of discretion for the Appellate Division to dismiss his appeal where it was untimely only because Mr. Calaff’s plea counsel assured him that counsel would “take care of” the appeal and then subsequently failed to prosecute it. Mr. Calaff never waived his right to appeal; he neither made any express waiver nor engaged in contemptuous conduct. To the contrary, he believed himself to be exercising his right to appeal and cannot now be deemed to have waived or abandoned it. In the alternative, Mr. Calaff asked this Court to reinstate his appeal by re- examining its minority rule that indigent defendants are not entitled to any assistance when seeking access to the intermediate appellate courts and instead must meet a burden to move for assigned appellate counsel pro se. The rule places unique and disproportionate burdens on indigent criminal defendants who wish to appeal, and recent precedent from this Court and the Supreme Court pose serious questions about the scheme’s constitutionality. The People respond that Mr. Calaff abandoned his appeal through inaction and silence and what they perceive as “gamesmanship.” Rather than prove that Mr. Calaff waived his right to appeal, the People claim that “waiver” is distinct from “abandonment,” and that, as a result, Mr. Calaff did not preserve a “waiver” argument and has no due process right to appeal. Further, the People urge that 2 New York should maintain its place as one of only two states that place a burden on defendants to request appellate counsel and prove their indigence without assistance, despite failing to dispute several of the constitutional violations inherent in the scheme that Mr. Calaff highlighted, and despite the State’s practice of automatically appointing appellate counsel to indigent civil litigants. A. Mr. Calaff Never Intentionally Relinquished his Right to Attack his 1993 Conviction; the People’s Theory of “Gamesmanship” Rests on Misrepresentations and is Not Supported by the Record. The right to appeal a criminal conviction is “absolute” and “fundamental.” People v. Ventura, 17 N.Y.3d 675, 679 (2011) (quoting People v. Montgomery, 24 N.Y.2d 130, 132 (1969)). The “invariable importance” of that right and the Appellate Division’s “distinct role” “make[] access to intermediate appellate courts imperative.” Ventura, 17 N.Y.3d at 679. That “absolute” and “fundamental” “imperative” causes the right of appeal to at times survive, inter alia, deadlines for filing an appeal, deadlines for perfecting the appeal, a defendant’s inaction, a2 3 4 Taveras v. Smith, 463 F.2d 141, 150-52 (2d Cir. 2006).2 People v. Johnson, 69 N.Y.2d 339, 342 (1987) (refusing to dismiss a 24 year-old appeal3 where the conviction could be used to enhance the defendant’s sentence for another crime); People v. Delarosa, 282 A.D.2d 296 (1st Dep’t 2001) (hearing appeal despite eight-year delay); People v. Dennis, 265 A.D.2d 271, 273 (1st Dep’t 1999) (hearing appeal despite ten-year delay). People v. O’Bryan, 26 N.Y.2d 95, 96-97 (1970) (overcoming the dissent’s argument that4 “inaction, when coupled with [the] knowledge [of how to perfect an appeal], should be viewed as an effective waiver of his right to appeal.”). 3 defendant’s own flight from the jurisdiction, guilty pleas, and defendants’ express5 6 waivers of the right to appeal. For, while the intermediate appellate courts have7 discretionary authority to control their own calendars through dismissal, “this discretionary power cannot be accorded such an expansive view as to curtail defendants’ basic entitlement to appellate consideration.” Ventura, 17 N.Y.3d at 681-82. As a fundamental right of constitutional dimension, the “absolute” right to appeal can only be extinguished through “demonstrably knowing, intelligent and voluntary” proceedings that provide “a record sufficient to overcome the presumption against them.” See People v. Cortez, __ N.Y.3d __ at 5 (Jan. 21, 2014) (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981) and Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (emphasis added); People v. Callahan, 80 N.Y.2d 273, 284 (1992) (the right to appeal has constitutional gravitas); see also Degen v. United States, 517 U.S. 820, 827 (1996) (dismissal of an appeal is a “harsh sanction” that must be governed by “necessity”). Respondent’s brief fails to deal with Ventura at all, does not claim to have applied the presumption against waiver in its analysis, and instead maintains that People v. Montgomery, 24 N.Y.2d 130, 132 (1969).5 See, e.g., People v. Seaberg, 74 N.Y.2d 1, 10 (1989); People v. Case, 42 N.Y.2d 98, 1006 (1977); People v. Bleakley, 34 N.Y.2d 311 (1974). People v. Callahan, 80 N.Y.2d 273, 284-85 (1992).7 4 the right of appeal is a statutory one not subject to due process waiver analysis at all. Mr. Calaff never intentionally relinquished his right to appeal his 1993 conviction. To the contrary, he relied on his attorney’s promises to “take care of” the appeal (A31-33). His attorney did indeed “take care of” at least one aspect of the appeal; he filed a Notice of Appeal reflecting Mr. Calaff’s intent to appeal his conviction which now serves to corroborate Mr. Calaff’s affidavit filed with the Appellate Division (A30). The plea attorney did not, however, further prosecute the appeal (A31-33). Neither did the district attorney or any court move to dismiss the appeal; it simply lingered. When Mr. Calaff did not hear from his attorney or anyone else, he assumed that the appeal had been taken and lost (A74). Mr. Calaff’s belief that his appeal had been taken and lost was reasonable as a matter of law. McHale v. United States, 175 F.3d 115, 119 (2d Cir. 1999) (“most clients will expect their appellate lawyer to take all the necessary steps to perfect a filed appeal…we need not impose upon [an indigent defendant] a requirement that he asked his lawyer to pursue an appeal that had been filed.”); Rodriguez v. People of New York, Slip. Op. 2004 WL 5575050 at *3-4 (Wood, J., Sept. 7, 2004) (it was reasonable for the defendant to wait more than a year to hear from his trial attorney regarding his direct appeal, especially because the First and Second 5 Departments have taken up to 13 years to hear an appeal); Baker v. Kaiser, 929 F.2d 1495, 1500 (10th Cir. 1991) (granting habeas petition even though the defendant “did not contact his [trial] attorney and assumed that appointed counsel would contact him [regarding his appeal],” because that waiting period “does not suggest that he knowingly and voluntarily waived his right to counsel” on appeal or the appeal itself). When Mr. Calaff learned of another procedural vehicle for challenging his 1993 conviction, i.e. a coram nobis petition, he immediately asked his attorney in a different matter to assist him in attacking the 1993 conviction through a coram nobis proceeding (A74). While he was rebuffed, Mr. Calaff did not lose interest in the case. Rather, he reached out to several criminal defense offices to try to obtain his case file and ascertain what his 1993 plea counsel recalled about the case (A75- 82). He received neither answers nor his file. As a result, it was not until 2012 that Mr. Calaff finally learned that the notice of appeal he had directed his attorney to file regarding his 1993 conviction had never ripened into a perfected appeal (A75). He immediately filed for poor person’s relief and soon thereafter filed his appellate brief (A59-60). Mr. Calaff’s reliance on his attorney’s misleading promises entitles him to reinstatement of his appeal. See A.B. 31-33; McHale v. United States, 175 F.3d 115 (2d Cir. 1999) (reinstating appeal where counsel failed to perfect the appeal); 6 People v. De Renzzio, 23 A.D.2d 842 (1st Dep’t 1965) (same); People v. Volious, 33 A.D.2d 976 (4th Dep’t 1970) (same). The passage of time alone does not suffice to prove waiver. A.B. at 26. While the People invoke the principle of finality, they cite no case finding that8 delay alone is sufficient to show that a criminal defendant who has noticed his appeal can be deemed to have “abandoned” or “waived” his appellate right. Instead, the prosecution cites various cases in which delay is combined with some act of contempt for appellate proceedings, such as absconding or refusing the courts’ specific and repeated instructions to perfect a state appeal. Respondent9 then complains that delay is often a defense strategy, but relies on a Supreme Court case that expresses the concern and then rejects a rigid rule that would extinguish a time-dependent right whenever it is not timely demanded because “such an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court’s pronouncements on waiver of constitutional rights.” Barker v. Wingo, 407 U.S. 514, 521, 525 (1972) (refusing to adopt a rule that “a defendant waives any consideration of his right to speedy trial for any period prior To prove that finality is an important principle, the People cite various cases outside the8 appeals process: People v. Jackson, 78 N.Y.2d 638, 647 (1991)(440 context); People v. Alexander, 97 N.Y.2d 482, 485 (2002) (motion for plea withdrawal); People v. Lopez, 71 N.Y.2d 662 (1988) (contemporaneous objection rule). The People cite, inter alia, People v. Taveras, N.Y.3d 227, 233 (2008) (even flight is not9 enough on its own to justify dismissal); Goeke v. Branch, 514 U.S. 115 (1995) (flight); and Estelle v. Dorrough, 420 U.S. 534 (1975), which has since been abrogated to find that due process will not allow an absolute rule forbidding former fugitives from appealing. Ortega-Rodriguez v. United States, 507 U.S. 234 (1993). 7 to which he has not demanded a trial,” because “under this rigid approach, a prior demand is a necessary condition to the consideration of the speedy trial right” and that is impermissible). While Respondent relies heavily on this Court’s decision in People v. West, 100 N.Y.2d 23 (2003) it does not respond to the significant distinctions Mr. Calaff highlights between his own confused silence and West’s on-the-record contempt for state appellate courts. See A.B. at 25. Instead, the People posit that Mr. Calaff, like Mr. West, waived his right to appeal by engaging in “apparent gamesmanship” relating to the appellate process. R.B. at 25-27. The prosecution’s theory of Mr. Calaff’s abusive “gamesmanship” may be summarized as follows: Mr. Calaff never intended to attack his 1993 conviction because he received a supposedly favorable plea deal; his attorney filed a notice of appeal without having consulted his client about Mr. Calaff’s wish to appeal, but it is Mr. Calaff who is lying about his attorney’s promises to “take care of” the appeal; Mr. Calaff only began to form an intention to attack his 1993 conviction in 2008, but did nothing about it until 2012; and he waited 19 years to attack his conviction through appeal to maximize the chance that witnesses’ memories had faded. See R.B. at 25-27. This Court is being asked to review the Appellate Division’s order of dismissal for an abuse of discretion; the Appellate Division did not reference any 8 of those prosecutorial theories of abandonment in the exercise of discretion this Court must now review (A2). Rather, the Court is reviewing the Appellate Division’s dismissal and announced finding that “the sentencing minutes…refute[]” Mr. Calaff’s account that his plea counsel promised to “take care of” the appeal (id.). The Appellate Division did not explain how the minutes of a sentencing proceeding could “refute” an attorney’s post-sentencing promise to “take care of” an appeal followed by that attorney’s filing of a notice of appeal, which itself reflects Mr. Calaff’s intention to appeal (id.). The Appellate10 Division’s facially insufficient reasoning is enough on its own to overturn the Appellate Division’s dismissal order because an unreasonable factual determination of abandonment offends due process. Cobb v. Ricks, 05 CV 3019, 2008 WL 2156752 at *1, 4 (E.D.N.Y. May 22, 2008). Moreover, the People have never disputed that, after learning about coram nobis proceedings from another layman in 2004, Mr. Calaff asked his then-current counsel in another case to help him attack his 1993 conviction through a coram nobis proceeding; that attorney refused (A74). Thus, it is undisputed that once Mr. Calaff knew of an available, unexhausted vehicle to attack his 1993 conviction, he It also dispenses with the prosecution’s argument that, because Mr. Calaff’s attorney said10 at the sentencing proceeding that he was handing Mr. Calaff a notice of what Mr. Calaff should do to appeal his conviction, Mr. Calaff should have understood that he had to do everything the form described on his own. A notice of right to appeal’s first admonition is to file a Notice of Appeal (A29). If it was both Mr. Calaff’s and his attorney’s understanding that Mr. Calaff would perform all of the tasks on the notice form without assistance, it is not clear why his attorney would have filed the notice of appeal. Yet that is what occurred. 9 immediately wrote requesting an attorney’s help in attacking his 1993 conviction. Instead of accepting disappointment when that attorney refused to help him attack his 1993 conviction, if Mr. Calaff had been aware that he had an as-yet pending right to appeal that conviction and an as-yet unexercised right to counsel to help him appeal, surely he would have made his application for poor person’s relief in 2004 and perfected his appeal then, especially where that conviction had just been used to enhance his sentence for the 2004 conviction. To hold otherwise would be to fail to do what courts must and indulge every reasonable inference against waiver of a fundamental right, here, the rights to appeal and the right to counsel on appeal. See Carnley v. Cochran, 369 U.S. 506, 514 (1962); accord People v. Cortez, ___ N.Y.3d ___ at 5 (Jan. 21, 2014). This coram nobis episode shows that Mr. Calaff indeed believed his appeal had been taken and lost. Certainly, it is difficult to square that undisputed attempt to challenge his 1993 conviction with the prosecution’s theory that Mr. Calaff “accepted the validity of his 1993 conviction for 19 years,” (R.B. at 25) i.e. from 1993 all the way through 2012, and the further claim that he did not begin to “explore the possibility” of attacking the conviction until 2008 (R.B. at 36). The People’s remaining – largely unpreserved – factual claim before this Court is that Mr. Calaff’s silence at subsequent predicate felony adjudications proves his lack of interest in challenging his 1993 conviction. In light of his 10 inquiry to counsel regarding challenging his 1993 conviction in the same time frame, Mr. Calaff’s silence before a court adjudicating his predicate felon status is best understood as layman’s confusion about whether and when he could challenge a conviction, rather than lack of interest in it. It is far from clear that Mr. Calaff abandoned his announced intent to attack his 1993 conviction. Yet, even without engaging in a specific waiver analysis – which places a heavy burden on the People to prove a knowing, voluntary and intelligent decision to relinquish a known right – the statute governing dismissal of appeals itself places the burden on the movant, i.e. the prosecution, to prove an unexcused “failure to prosecute.” C.P.L. § 470.60; A.B. 35-38. The People have not met that burden. The People have attempted to shift their burden through complaining that Mr. Calaff did not obtain a supporting affidavit from his non-responsive plea counsel, but do not distinguish caselaw finding that such affidavits are “wasteful and unnecessary.” Nor have they themselves provided any affidavit from11 counsel to refute Mr. Calaff. While the People have attempted to shift their burden, they fail to allege facts essential to meeting it. The People mention many times that Mr. Calaff The People do not attempt to distinguish citations in Mr. Calaff’s brief which find that11 it is futile and unfair to require a defendant to obtain an affidavit from an attorney he is accusing of misconduct because that attorney is in a position adverse to him. See People v. Radcliffe, 298 A.D.2d 533, 534 (2d Dep’t 2002). Instead, for the claim that Mr. Calaff should have “corroborated” his sworn affidavit regarding his appellate right, they cite to a case that primarily faults a defendant for failing to allege even in his own affidavit facts sufficient to make out the prejudice prong of his Strickland ineffective assistance of counsel claim. See People v. Ozuna, 7 N.Y.3d 913, 914 (2006). 11 received a Notice of Right to Appeal, but fail even to allege facts supporting that Mr. Calaff sufficiently understood the notice in order to timely perfect his appeal. In separately claiming that Mr. Calaff could understand court proceedings in 1993 and advocate for himself well enough during them, the People rely on Mr. Calaff’s informing the plea judge that he was confused and not yet ready to discuss certain matters. R.B. 57. The People have failed to allege that Mr. Calaff understood the right he supposedly abandoned at any time before they claim he abandoned it. Nor have the People alleged any actual prejudice from the appeal’s delay. In Ortega-Rodriguez, in considering appellate disentitlement for individuals who flee but are recaptured, the Supreme Court allowed only that if the Government “would” be prejudiced in locating witnesses or presenting evidence at a retrial, that “might,” in “some instances,” make dismissal an appropriate response, 507 U.S. at 249. In Degen v. United States, 517 U.S. 820, 825 (1996), the Supreme Court further clarified its statement in Ortega-Rodriguez to mean that it would not rule out “the possibility” of appellate disentitlement “where necessary to prevent actual prejudice to the Government from a fugitive’s extended absence.” (Emphasis added.) If the Government must demonstrate actual prejudice to secure even the “possibility” of dismissing the appeals of formerly fugitive defendants, then surely no lesser showing can justify the dismissal of appellant’s appeal here. 12 Yet instead of alleging any actual prejudice, the People charge that “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,” citing to People v. Lynn, 28 N.Y.2d 196, 202 (1971) (emphasis added). R.B. at 24. The People fail to mention that, despite this Court’s concern regarding strategic behavior, it actually held that, to be able to move forward with reinstating a procedurally lapsed appeal after a plea of guilty, “we would require only that the petition allege a prior dissatisfaction with a judgment of conviction which, by reason of ignorance or improper advice of counsel, was never tested by appellate review.” Id. at 204. Mr. Calaff certainly has met that standard. B. Contrary to the People’s Argument, Due Process Does Regulate Indigent Defendants’ Loss of the Fundamental and Absolute Right to Appeal. In response to Mr. Calaff’s argument that due process forbids the dismissal of his appeal because he did not waive his fundamental right to appeal, Respondent argues that dismissal of Mr. Calaff’s appeal was appropriate because it is not subject to due process analysis. R.B. at 29-30. Due process is irrelevant, in the People’s view, because Mr. Calaff “abandoned” his appeal rather than “waiving” his right to it, and because the right to appeal is merely a statutory right that the legislature can condition on any deadline it wishes, insulated from courts’ 13 reviewing power. Id. The People’s distinction between statutory “abandonment” and constitutional “waiver” is fanciful. The right to appeal has constitutional dimension, and, notwithstanding the legislature’s undisputed power to condition the exercise of rights on reasonable deadlines, no application of a procedural rule which acts to extinguish a fundamental right is immune from due process analysis. “[D]ue process” forbids the state from “set[ting] up a system of appeals as of right but…refus[ing] to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal.” Evitts v. Lucey, 469 U.S. 387, 405 (1985); see also Smith v. Robbins, 528 U.S. 259, 277 (2000) (due process and equal protection largely converge to protect the right of appeal once the state establishes an appellate system, and “[d]ue process requires States to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal.”). As such, “the denial of [the right to appeal] constitutes as much a failure of due process as would the denial of the right to a trial itself.” People v. Rivera, 39 N.Y.2d 19, 522 (1976); see also Mayer v. City of Chicago, 404 U.S. 189, 193, 196-97 (1971) (“[I]t is now fundamental that, once established…avenues of appellate review” are subject to due process and equal protection analysis). Thus, constitutional due process regulates whether a defendant has in fact had “a fair opportunity to obtain an adjudication on the merits,” id., and will not brook the extinguishment of a fundamental right except through a constitutionally 14 valid waiver. See People v. Cortez, __ N.Y.3d __ at 5 (Jan. 21, 2014) (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981) and Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (emphasis added); People v. Callahan, 80 N.Y.2d 273, 284 (1992); People v. Montgomery, 24 N.Y.2d 130, 132 (1969) (“The time has come for us to announce clearly that every defendant has a fundamental right to appeal his conviction and that, accordingly, basic fairness and due process require that the right not be dissipated….because….counsel failed to abide by a promise to either file or prosecute an appeal.” (emphasis added)). Notwithstanding any possible semantic difference, waiver and abandonment require the same due process analysis. Cobb v. Ricks, 05 CV 3019, 2008 WL 2156752 at *4 (E.D.N.Y. May 22, 2008) (affirming that abandonment requires the same showing as waiver). In People v. West, this Court used the words “abandonment” and “waiver” interchangeably, found that West had received all the “process he was due” and found that Mr. West had indeed “waived” his appeal. 100 N.Y.2d 23, 26 (2003). That approach reflects black letter law finding abandonment to be merely a form of waiver. People v. Rodriguez, 50 N.Y.2d 553, 557 (1980) (“even a waivable constitutional right” can only be surrendered through “an intentional relinquishment or abandonment” and “[a] record that is simply silent on the question will not overcome the ‘presumption against waiver’”); People v. Kassebaum, 95 N.Y.2d 611, 621 (2001) (“a contention he has abandoned 15 – he waived the claim asserted on appeal”); Black’s Law Dictionary, (9th. Ed., 2009) (“waiver…[is] the voluntary relinquishment or abandonment – express or implied, of a legal right or advantage”). Respondent’s citations on this point actively undercut its position that reasonable procedural rules are not subject to due process waiver analysis in application. For its position that the state may enforce any procedural rule it wishes in any case, respondent cites Taveras v. Smith, 463 F.3d 141 (2d Cir. 2006). The Taveras court cautioned that “the key to the case before us…lies not in whether New York can have a fugitive disentitlement doctrine and hem it in with procedural requirements – of course it can – but in the fugitive disentitlement doctrine New York has chosen to have and how it has applied it in Taveras’s case.” Id. at 149. It is just so with Mr. Calaff; he does not argue and never has12 argued that the court should strike down all deadlines or fail to enforce them. He argues only that their application in his case is unjust because of his attorney’s misleading promises, which tend to show that (a) Mr. Calaff did not waive his fundamental right and therefore did not lose it; and (b) he is entitled to relief under Respondent’s other citations are similarly unhelpful to its rigid position on the legislature’s12 supposed power to make and enforce any deadline it sees fit in any case. One case merely refuses to apply retroactively the Eighth Circuit’s otherwise undisturbed finding that due process forbids a state court from dismissing the appeal of a recaptured fugitive where there is no demonstrated adverse effect on the appellate process. Goeke v. Branch, 514 U.S. 115 (1995). Another case has been abrogated to the extent that the Supreme Court declined to extend it, finding that due process will not allow an absolute rule forbidding former fugitives from appealing. Ortega-Rodriguez v. United States, 507 U.S. 234 (1993) (declining to extend Estelle v. Dorrough, 420 U.S. 534 (1975)). 16 this Court’s longstanding analysis of the appropriate remedies for attorney misconduct that misleads defendants into defaulting on their appeals. A.B. 31-33. He merely seeks to show that his case fits within long-recognized exceptions to otherwise valid procedural rules, exceptions which themselves have constitutional dimension. Respondent’s claim that the right to appeal is unworthy of a waiver analysis because it is statutory ignores centuries of New York law “constitutionalizing” the pre-existing and “absolute” common-law right to appeal a criminal conviction. People v. Callahan, 80 N.Y.2d 273, 284 (1992) (“The duty of the Appellate Division to entertain all appeals from final judgments in criminal cases is of constitutional dimension”); People v. Pollenz, 67 N.Y.2d 264 (1986) (“the adoption of various [constitutional] provisions, beginning [in]…1894… ‘constitutionalized’ [the] preexisting duty” of the Appellate Division to “entertain all appeals from final judgments in criminal cases.”); People v. Ventura, 17 N.Y.3d 6 7 5 , 6 7 9 ( 2 0 1 1 ) ( C P L 4 5 0 . 1 0 “ c o d i f i e s a c r i m i n a l defendant’s…absolute…common-law right to appeal to an intermediate appellate court”). Respondent’s position also ignores the Supreme Court’s clear pronouncements that, once a state creates a system of appellate review, it may not 17 extinguish an indigent appellant’s right to appeal except through processes that comport with due process and equal protection: the Equal Protection and Due Process Clauses of the Fourteenth Amendment largely converge to require that a State's procedure “afford adequate and effective appellate review to indigent defendants,”…A State's procedure provides such review so long as it reasonably ensures that an indigent's appeal will be resolved in a way that is related to the merit of that appeal. Smith v. Robbins, 528 U.S. 259, 261, 120 S. Ct. 746, 750-51, 145 L. Ed. 2d 756 (2000) (citing Griffin v. Illinois, 351 U.S. 12, 20) (1956)) (emphasis added). The People’s position ignores “a line of [Supreme Court] precedent…that imposed constitutional constraints on those States choosing to create appellate review.” Id. at 260. Respondent’s urged distinction between constitutional waiver and statutory abandonment provides more appellate protections for a defendant who expressly waives his appellate right on the record than it does for a defendant who does not provide an express waiver and instead files a notice of appeal. In the prosecution’s view, a defendant can forever extinguish his right to appeal and simultaneously deprive courts of jurisdiction to ascertain whether he still has the right without a judge, without an attorney, without a signature, without any record at all for an appellate court to review and thus without regard to the reason for his silence. Silence and inaction can functionally accomplish what a signed waiver will not: the 18 unreviewable loss of a fundamental, “constitutionalized” right. The doctrine of constitutional avoidance counsels against creating this second tier of appellate rights, which are not cognizable in due process waiver analysis and forever evade constitutional review. The prosecution’s claim that Mr. Calaff has not preserved his waiver argument rests on the same facile distinction between waiver and abandonment, and is similarly invalid. In sum, Mr. Calaff’s right to appeal retains its due process protection and cannot be lost except through a valid waiver; the Prosecution has failed even to allege the essential facts to prove such waiver and the record reveals only a man who has wanted to attack his 1993 conviction for twenty years, but because he was unaided by counsel at a critical juncture, lost his ability to do so. C. There is No Dispute that the Current Scheme for Assignment of Appellate Counsel is Unconstitutional in at least Four Respects. While Respondent makes general claims that the current assignment of counsel scheme is constitutional, relying on this Court’s decision in People v. West, the People do not dispute four constitutional defects in that system which the West court did not consider and which Mr. Calaff raised in his brief. While Respondent claims that the federal courts have approved of New York’s system wholesale, R.B. 40, they have done no such thing. Rather, a district court on habeas review declined to say that West was an arbitrary or unreasonable application of Supreme Court precedent as it stood at the time West was decided, 19 i.e. in 2003, before the Supreme Court and other case law which Mr. Calaff argues abrogated the reasoning in West. West v. Breslin, No. 60 Civ. 4167, 2008 WL 110947, *5 (S.D.N.Y. Jan. 2, 2008). Indeed, the habeas litigants did not raise and13 therefore the habeas court did not consider those later precedents. Id. 1. Respondent Does Not Contest that the Average Indigent Defendant is Unable to Comprehend the Instructions that Are Supposed to Safeguard his Right to Appeal. Respondent does not argue that the average criminal defendant is able to comprehend and act on the written instructions he receives regarding his appellate rights. While the People rightly point out that the instructions are – to a lawyer’s eye – “simple and straightforward” – they have no answer to the Supreme Court’s finding that the average criminal defendant can neither write a short letter to correct an error on a bill nor read a bus schedule, let alone “state fully his financial circumstances” without assistance. R.B. 40-42. Nor do they claim that this Court had that information before it when it decided West in 2003, since the relevant Supreme Court case was not decided until 2005. Halbert v. Michigan, 545 U.S. 605, 620-21 (2005). Thus, Respondent does not dispute that New York’s current system of assigning counsel rests on a form of notice that is not readily comprehensible to its It is not clear why the People went on to say that the Second Circuit had affirmed that13 decision (R.B. 40), since the Second Circuit explicitly noted that it was not considering the right to counsel issue, and was only considering a separate claim regarding the right to jury trial. 410 Fed. App’x 393 (2d Cir. 2011). 20 target audience of indigent criminal defendants. With neither a readily understood form of notice nor safeguard procedures – such as the extension of trial counsel’s agency to include the in forma pauperis application for appeal, and an on-the- record colloquy regarding whether a defendant wishes to appeal and would like counsel – New York’s system allows indigent defendants to lose their right to appeal and their right to assigned counsel on appeal without ever fully understanding them. See A.B. 47-51. 2. Respondent Does Not Contest that the Current Assignment of Counsel System Unconstitutionally Allows Defendants to Proceed on Their Noticed Appeals Pro Se Without the Required Safeguard of Court Inquiry into their Understanding and Competence. Nowhere does Respondent specifically contest that the current system of assigning counsel unconstitutionally allows defendants to proceed into the realm of appeals pro se without the constitutionally required colloquy to determine that they are ready to do so, wish to waive the right to appellate counsel, and are willing to accept the consequences, consequences such as possibly losing the right to appeal through delay. See A.B. 55-56. On the contrary, Respondent contends that the appointment of counsel is appropriate where, otherwise, an indigent defendant might lose out on rights because deadlines are strictly enforced (see R.B. 46) and emphasizes the 21 importance of strictly enforcing deadlines for timely perfection of appeals. Id., passim. 3. Respondent Does Not Contest that a System Allowing Indigents to Forfeit Appellate Counsel Through a Failure to Request it is Unconstitutional. Respondent does not contest and West did not consider Mr. Calaff’s argument that New York’s system is unconstitutional because it allows indigent defendants to forego appellate counsel through a failure to request that counsel, a result that United States Supreme Court precedent expressly forbids. See A.B. 54- 55. 4. Respondent Does Not Contest that a System Providing Notice of Default and an Opportunity to Be Heard to Represented Defendants Violates Equal Protection and Due Process. Respondent does not contest and West did not consider that equal protection and due process are violated when appellate courts guarantee represented defendants an opportunity to avoid procedural default while failing to guarantee that opportunity to unrepresented defendants. See A.B. 38-41. Respondent merely contests that that is what the Appellate Division’s rules do. R.B. 49 n.19. But the Appellate Division’s rules clearly require notice of possible default on “dismissal calendar days” only to represented defendants. N.Y. Ct. Rules § 600.12(c)(2)-(4). 22 5. Respondent Does Not Contest that it is Fundamentally Unfair to Automatically Appoint Appellate Counsel to Indigent Civil Litigants While Failing to Do So for Indigent Criminal Defendants. While claiming that a different rule would have unmanageable costs, the People do not dispute that it is fundamentally unfair to automatically appoint appellate counsel to indigent civil litigants while placing a burden on indigent criminal defendants to apply for counsel on their own and prove their indigence on their own, as is the case in this State. See A.B. at 60. Neither do they explain what would be so costly about merely extending the agency of appointed trial counsel – which already includes advising a defendant of his appellate rights, ascertaining whether he wants to appeal, and filing a notice of appeal – to merely include the application for in forma pauperis relief on appeal, where the People themselves claim that the application is simple and straightforward. Nor do they explain why fully 48 of our sister states already manage to fund similar appointments of appellate counsel to indigent defendants, i.e. appointments that do not depend on written requests that must be made without counsel’s assistance. See Mayer v. City of Chicago, 404 U.S. 189, 193, 196- 97 (1971) (the primary case establishing an indigent’s right to a transcript for appeal “does not represent a balance between the needs of the accused and [fiscal] interests of society; its principle is a flat prohibition against pricing indigent 23 defendants out of as effective an appeal as would be available to others able to pay their own way”). D. Respondent Fails to Meaningfully Distinguish Any of the Intervening Precedent that Abrogates the Court’s Rule in People v. West. Respondent’s attempts to distinguish the cases that have abrogated the reasoning in West are unavailing. The People are right that the Supreme Court expressed concern in Halbert, 545 U.S. 605, about defendants who were being asked to provide legal argument on their own, without the assistance of counsel. R.B. 42. Yet the Court’s ruling analyzed whether a state’s safeguards for the right to appeal adequately protect that right for the average indigent defendant in light of the common characteristics of illiteracy, the inability to navigate official proceedings, and frequent mental illness. A.B. 47-48. So too, while Respondent is right that Halbert is concerned with a procedure that excludes whole classes of defendants from appellate courts, R.B. 43, that is what New York’s system effectively does. Respondent does not claim that New York’s system adequately protects the rights of, for example, mentally ill defendants who likely will be unable to perfect their appeals without assistance, or illiterate defendants. Nor does respondent dispute that these two categories make up the majority of indigent defendants.14 Respondent also attempts to distinguish United States v. McMahon, No. 04-5011, 200514 (continued...) 24 While Respondent accurately conveys that People v. Kordish, Slip. Op., SSM No. 25, Court of Appeals Order of October 17, 2013, does not require the appointment of counsel in applying for poor person’s relief, R.B. 44, Respondent does not contest that Kordish’s functional effect is to mandate that counsel eventually be assigned to even a procedurally defaulted appeal before it can be dismissed, meaning that West is now a rule that delays the appointment of counsel rather than obviating the need for it. See A.B. 48-49. Ultimately, Respondent’s arguments against overturning West turn on its objection that Mr. Calaff did not preserve his challenge to the West rule in the Appellate Division. R.B. 38. As an initial matter, preservation rules exist to ensure that parties make objections at the time when a tribunal can correct the error in question. See generally People v. Patterson, 39 N.Y.2d 288, 294-295 (1976) (setting out supporting rationale for preservation requirements). The Appellate Division is not empowered to overturn this Court’s precedents. Because raising15 (...continued)14 WL 115506 (10th Cir. 2005) on the ground that it was citing Baker v. Kaiser, 929 F.2d 1495 (1995). That case is no great help to the People, as it granted a habeas petition even though the defendant “did not contact his [trial] attorney and assumed that appointed counsel would contact him [regarding his appeal],” because that waiting period “does not suggest that he knowingly and voluntarily waived his right to counsel” on appeal or the appeal itself. Id. at 1500. Moreover, both Kaiser and McMahon concern federal prosecutions, in which a defendant is automatically entitled to the assignment of counsel on appeal without a specific application for poor person’s relief, so long as he was represented by assigned counsel at trial. 18 U.S.C. 3006A(c). By contrast, this Court does have the power to recognize constitutional defects that15 require changes in Appellate Division procedures, contrary to the People’s claim that this Court has “no authority” to “rewrite” the Appellate Division’s system for assigning counsel in New York. R.B. 46. 25 the argument there would have been like raising a pure question of fact before this court – i.e. a facially absurd request not calculated to present the appropriate tribunal with a request it could resolve – the preservation rule should have no application here. Further, Mr. Calaff’s request that this Court re-examine the West rule relies on arguments of constitutional error that do not require preservation because they involve fundamental rights, i.e. the right to counsel and the right to appeal. See, e.g., People v. Kinchen, 60 N.Y.2d 772 (1983). E. Respondent’s Remaining Contentions are Unpreserved. The People’s remaining arguments and factual contentions are unpreserved. See Mr. Calaff’s Response to Respondent’s Motion to Take Judicial Notice or Enlarge the Record and Cross-Motion to Strike Off-the-Record Portions of Respondent’s Brief and Appendix, filed with this Court and served on Respondent on January 21, 2014. In sum, Respondent has failed to dispute and thereby concedes at least four constitutional defects in New York’s system of assigned counsel. See People v. Gruden, 42 N.Y.2d 214, 216 (1977) (“Normally, what is not disputed is deemed to be conceded”). It has not meaningfully distinguished any of the precedent that abrogates the West rule, and its preservation arguments are unavailing. This Court 26 should reexamine a rule that has proved unconstitutional, impractical, and fundamentally unfair. POINT II THE PLEA COURT’S SUA SPONTE DISMISSAL OF MR. CALAFF’S ASSIGNED COUNSEL, WITHOUT MAKING ANY THRESHOLD FINDINGS REGARDING THE REASONS FOR THAT DISMISSAL, VIOLATED MR. CALAFF’S SIXTH AMENDMENT RIGHTS. MR. CALAFF THEN WAS DEPRIVED OF COUNSEL IN VIOLATION OF UNITED STATES V. CRONIC WHEN SUBSTITUTE COUNSEL ACTED AS A MERE CONDUIT FOR A PLEA OFFER. THESE CLAIMS ARE NOT SUBJECT TO PRESERVATION, PREJUDICE OR HARMLESS ERROR ANALYSIS. Point II of Mr. Calaff’s brief argued that his conviction should be overturned because the trial court violated his constitutional right to counsel of his choice and also effectively deprived him of any counsel at all. The prosecution responds that Mr. Calaff was not deprived of any right, that no prejudice accrued if he was, that he failed to preserve his claim, and that in any event this Court cannot provide the remedy he seeks. There is no dispute that the underlying merits of the right to counsel claim are relevant. The merits revolve around purely legal questions and the People assert in their brief that the Appellate Division considered the merits of Mr. Calaff’s underlying claim in the exercise of discretion that this Court is now asked 27 to review. R.B. 31 n.12 (“it appears that the Appellate Division did in fact consider the merits of defendant’s appeal [and] concluded, based on the totality of the circumstances,” including the merits, which are a dismissal factor under Taveras, “that the appeal should be dismissed.”). 16 A. The Constitutional Right to Counsel-of-Choice Does Not Require Preservation. First, the People argue that no appellate court should reach the merits of a right to counsel-of-choice claim unless the defendant registered a specific and contemporaneous objection on the record at the time his right was violated. RB 55-56. For that rule, Respondent relies on People v. Tineo, 64 N.Y.2d 531 (1985). Id. Yet Tineo dealt with a defendant who actually requested that his attorney be removed, thereby affirmatively waiving his right to counsel of choice rather than merely failing to preserve his objection to its violation. 64 N.Y.2d at 534. Mr. Calaff made the same distinction below, yet the People have yet to respond to it. Compare R.B. 55-56 with Defendant-Appellant’s Reply Brief to the Appellate Division at 7. Indeed, Taveras itself offered comment on several of the dismissal factors it announced16 in light of the appellants’ circumstances, even though the Appellate Division had not commented on those circumstances in its order. See People v. Taveras, 10 N.Y.3d 227, 233. All but one of the cases that Respondent cites for the proposition that the court does not go on to consider or comment on the merits of an appeal before affirming or reversing an order of dismissal predate Taveras’ announcement of specific factors to weigh in dismissal decisions. See R.B. at 53-54. 28 Moreover, the rule the People advance is inconsistent with this Court’s recent holding in People v. Griffin, which reached the issue of a counsel-of-choice violation and reversed a conviction even though the defendant himself had not made any objection below. People v. Griffin, 92 A.D.3d 1, 7 (1st Dep’t 2011) aff'd, 20 N.Y.3d 626 (2013). B. The Supreme Court and Other State High Courts Have Rejected Each of Respondent’s Objections to Finding a Counsel-of-Choice Violation on These Facts. Finally left with the merits of Mr. Calaff’s claim, the People argue that there was no violation of the right to counsel-of-choice because (1) the record does not establish that there was a good working relationship between Mr. Calaff and his original counsel; and (2) he might have been better off with his substitute counsel. R.B. 59-60. Each argument is legally irrelevant. The right to keep one’s counsel free of unreasonable court interference does not depend on any profession of love for one’s attorney. It attaches the moment counsel is assigned. Smith v. Superior Court of Los Angeles Cnty., 68 Cal. 2d 547 (1968). In the counsel-of-choice context, once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted 29 and invidious discrimination arising merely from the poverty of the accused. Id.; see also, e.g., McKinnon v. State, 526 P.2d 18, 22 (Alaska 1974) (same); Harling v. United States, 387 A.2d 1101 (D.C. 1978) (same); People v. Hagos, 250 P.3d 596, 608 (Colo. App. 2009) (once counsel is appointed, a defendant is entitled to keep that counsel “in the absence of a demonstrable basis in fact and law to terminate that appointment.”). Rather than premise counsel-of-choice claims on particular factual findings that an indigent client and his assigned counsel have a relationship worth saving, “once an attorney-client relationship has formed between assigned counsel and an indigent defendant, the defendant enjoys a right to continue to be represented by that attorney as ‘counsel of his own choosing.’” People v. Espinal, 10 A.D.3d 326, 329-30 (1st Dep’t 2004), citing People v. Arroyave, 49 N.Y.2d 264, 270 (1980). Thus, rather than the defendant having any burden to explain that he wants to retain his present counsel, it is the court’s burden to make threshold findings as to why it is removing defense counsel. Id. The failure to do so on the record is reversible error. Id. (rejecting the only reason the record revealed, i.e. that counsel was not ready to proceed on a single occasion despite promising to be ready at the immediately preceding appearance, and finding that “any justification for the court’s action that was neither articulated by the court, nor advanced before the court by the People, is unpreserved for appellate consideration.”). 30 Next, even if a court accepted Respondent’s self-serving and uncited speculation that Mr. Calaff was “happier” with the substitute counsel who urged him to plead guilty within hours of assignment, R.B. 60-61, those facts would be irrelevant. There is no “prejudice” prong to a counsel-of-choice claim. United Staets v. Gonzalez-Lopez, 548 U.S. 140 (2006). In fact, such claims are immune from even harmless error analysis. Id. Once a defendant proves that a court relieved his assigned counsel without placing adequate threshold findings on the record, he need not prove anything else before his conviction should be overturned. At one point, the People resort to arguing that the substitution of counsel was Mr. Calaff’s idea. RB 62. In doing so, Respondent blatantly misrepresents the record, claiming that “when Dorff failed to appear, an off-the-record conference was held, after which the judge made the substitution of counsel without objection.” Id. That sentence is simply misleading. As the record actually reveals, an off-the-record conference was not held “when” Mr. Dorff failed to appear, but rather an off-the-record conference was held with a co-defendant’s attorney when the case was first called: COURT CLERK: Calendar number fifty-two, Ivan Calaff and [co- defendant] William Martinez. Indictment 524 of ’93. THE COURT: Come up, please, on Mr. Calaff and Mr. Martinez. (Bench conference held off record). 31 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. (A5). Nothing preceding the conference suggests that the court was concerned with Mr. Dorff’s presence or absence. The case was called, the judge commanded someone to “come up please, on Mr. Martinez and Mr. Calaff,” and then held an off-the-record conference at the bench. (Emphasis added.) Incarcerated defendants do not regularly approach the bench for a conference with their arraigning magistrates, especially where the judge has only requested the presence of attorneys; here the judge requested anyone who might be “on” Mr. Calaff or Mr. Martinez, not Mr. Calaff or Mr. Martinez. After resuming, he asked aloud where Mr. Dorff was, received no immediate response, and without ever consulting Mr. Calaff, or putting any threshold finding on the record, relieved Mr. Calaff’s assigned counsel. Id. The plea court’s sua sponte dismissal of assigned counsel without a creation of any record of its reasoning is plain and reversible error not subject to preservation, prejudice analysis or harmless error review. See supra; see also People v. Burton, 28 A.D.3d 203, 811 (1st Dep’t 2006) (“as the People concede, 32 the court’s sua sponte discharge of counsel….and its substitution of new counsel, on the basis of a single absence…was reversible error”); People v. Johnson, 547 N.W.2d 65, 67 (Mich. App. 1996) (“The trial court improperly removed defendant’s original court-appointed counsel from the case without defendant’s request or consent, thus violating defendant’s Sixth Amendment right to counsel.”). C. In Response to this Court’s Concern that Defendants Are Deprived of Counsel When Their Attorneys Merely Act as Conduits for Plea Offers, the People Say Only that Mr. Calaff’s Plea Counsel “Was Active and Engaged and…Made Sure That [Mr. Calaff] Was Adequately Informed about the Offer Before the Plea Deal Was Finalized.” Finally, while Respondent claims to dispute Mr. Calaff’s separate argument that he was denied the assistance of counsel in violation of United States v. Cronic, 466 U.S. 648 (1984), Respondent misconstrues the nature of a Cronic claim. R.B. 63. Ignoring this Court’s concern that counsel who act as “mere conduit[s] for plea offers” deprive criminal defendants of their Sixth Amendment rights in violation of Cronic, Respondent merely asserts that “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.” Hurrell- Harring v. State, 15 N.Y.3d 8, 19-20 (2010); R.B. 63. 33 CONCLUSION Mr. Calaff never voluntarily or knowingly relinquished his “fundamental,” “absolute,” “imperative” and constitutionally cognizable right to appeal. He relied on his attorney’s promises to prosecute his appeal and cannot now be penalized for his attorney’s failures. In responding to Mr. Calaff’s arguments, the People have failed to meet their statutory burden to prove abandonment, failed to meet their constitutional burden to prove waiver, and failed even to dispute that the system of counsel assignment which created this fiasco has at least four serious and specific constitutional defects. This Court should reinstate Mr. Calaff’s appeal and offer guidance to the Appellate Division regarding the purely legal question of the merits of Mr. Calaff’s appeal. 34 FOR ALL THE FOREGOING REASONS, MR. CALAFF’S APPEAL SHOULD BE REINSTATED WITH REASONING WHICH COMMENTS ON THE MERITS OF HIS APPEAL. Dated: New York, New York January 29, 2014 Respectfully submitted, Robert S. Dean Attorney for Petitioner-Appellant Center for Appellate Litigation 74 Trinity Place New York, NY 10006 (212) 577-2523 By ____________________ Claudia Trupp, Esq. Of Counsel Sarah Siegel Legal Fellow Certified for Admission, Not Yet Admitted 35 PRINTING SPECIFICATIONS STATEMENT The brief was prepared in Wordperfect®, using a 14-point Garamond Font, with 12-point footnotes, and totaled 8,358 words. 1A