The People, Respondent,v.Marcos Llibre, Appellant.

Brief

N.Y.November 16, 2015

To be argued by ROBIN NICHINSKY (15 MINUTES REQUESTED) Court of Appeals .i>tate of J}etn !lork THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - MARCOS LLIBRE, Defendant-Appellant. APL-2014-00303 BRIEF FOR DEFENDANT-APPELLANT ROBIN NICHINSKY Of Counsel June 2015 Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, NY 10005 TEL (212) 577-2523 FAX (212) 577-2535 rnichinsky@cfal.org TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 QUESTION PRESENTED 2 SUMMARY OF ARGUMENT 2 STATEMENT OF FACTS 5 Introduction 5 The Charges, Plea and Sentence 6 The Coram Nobis Petition . 9 ARGUMENT THE COURT SHOULD GRANT THE PETITION FOR A WRIT OF ERROR CORAM NOBIS WHERE DEFENSE COUNSEL'S FAILURE TO INFORM APPELLANT ABOUT HIS RIGHT TO APPEAL OR TO FILE A NOTICE OF APPEAL ON HIS BEHALF CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL THAT RESULTED IN THE DENIAL OF HIS FUNDAMENTAL RIGHT TO COUNSEL. U.S. CONST. AMENDS. V, VI AND XIV; N.Y. CONST. ART. I, § 6. 12 A. B. CONCLUSION Counsel Is Required To Inform And Consult With His Client About The Right To Appeal Or To File a Timely Notice Of Appeal On His Behalf. (1) The Duty to Inform About the Right to 13 Appeal 14 (2) The Duty to Consult About the Right to Appeal 18 Coram Nobis Is Appropriate Where Appellant Lost His Right To Appeal Due Solely To Counsel's Ineffectiveness, And He Would Have Timely Appealed If He Had Been Properly Advised (1) The Outcome Here is Compelled By This 20 Court's Holding in Syville 20 ( 2) Counsel's Performance Here Was Deficient and Appellant Was Prejudiced and Entitled to Coram Nobis Relief 26 33 i TABLE OF AUTHORITIES FEDERAL CASES Campusano v. United States, 442 F.3d 770 (2d Cir. 2006) 18, 30 Evitts v. Lucey, 469 U.S. 387 (1985) 13 I 1 7 I 22 Jones v. Barnes, 463 U.S. 745 (1983) 14 Missouri v. Frye, 566 U.S. I 132 s. Ct. 1399 (2012) 29 Penson v. Ohio, 488 U.S. 75 (1988) 13 Roe v. Flores-Ortega, 528 U.S. 470 (2000) 2, 5, 13, 14, 16, 18, 19, 22, 29, 30,32 Strickland v. Washington, 466 U.S. 668 (1984) 30 STATE CASES People v. Andrews, 23 N.Y.3d 605 (2014) 4, 23, 24, 25, 28 People v. Bradshaw, 18 N.Y.3d 257 (2011) 4 I 27 People v. Bachert, 69 N.Y.2d 593 (1987) 3, 13 People v. Benevento, 91 N.Y.2d 708 (1998) 16 People v. Bing, 76 N. Y.2d 331 (1990) 15 People v. Borum, 8 N. Y.2d 177 (1960) 15 People v. Caban, 5 N. Y.3d 143 (2005) 15 People v. Callahan, 80 N. Y.2d 273 (1992) 4, 27 People v. Corso, 40 N. Y.2d 578 (1976) 16 People v. Crimmins, 36 N. Y.2d 230 (1975) 14 People v. Harrison, 85 N.Y.2d 794 (1995) 15 People v. Johnson, 69 N. Y.2d 339 (1987) 21 People v. Llibre, 125 A.D.3d 422 (1st Dep't 2015) 9, 10 People v. Lopez, 6 N.Y.3d 248 (2006) 4, 27 ii People v. Louree, 8 N.Y.3d 541 (2007) 25 People v. Montgomery, 24 N.Y.3d 130(1960) .13, 15, 17, 20, 21,23 People v. O'Bryan, 26 N.Y.2d 95 (1970) 10 People v. Oathout, 21 N.Y.3d 127 (2013) 16 People v. Oliveras, 21 N.Y.3d 339 (2013) 16 People v. Pride, 3 N.Y.2d 545 (1958) 14 People v. Peque, 22 N.Y.3d 168 (2013) 7, 10, 27, 29, 30, 31 People v. Rashaun Sanders, 9, 2015) N. Y.3d , Slip Op. No. 78 (June 26 J 27 People v. Seaberg, 74 N.Y.2d 1 (1989) People v. Selikoff, 35 N.Y. 227 ('1974) People v. Settles, 46 N.Y.2d 154 (1978) People v. Syville, 15 N.Y.3d 391 (2010) People v. Thomas, 47 N.Y.2d 37 (1979) People v. Tyrell, 22 N.Y.3d 359 (2013) People v. Ventura, 17 N.Y.2d 675 (2011) 27 29 15 passim 21 29 2, 15, 21, 23 People v. West, 100 N.Y.2d 23, cert. denied, 540 U.S. 1019 (2003) 13, 16, 19 FEDERAL STATUTES U.S. Const. Amends. V, VI, and XIV 2, 5, 12, 13 8 U.S.C. §1227 (a) (2) (B) (i) 9 STATE STATUTES N.Y. Const. art. I, § 6 2, 5, 12, 13 N.Y. Const. art. VI, § 5 3 C.P.L. § 440.10 6, 9, 10, 31 C.P.L. § 450.10 2 t 6 t 13 C.P.L. § 450.90(1) 1 iii C.P.L. § 460.10 (1) (a) 3 / 20 C.P.L. § 460.30 3, 4, 6, 11, 13, 16, 21, 22, 23, 24, 31 C.P.L.R. § 550 ( c) 3 P.L. § 220.09 ( 1) 1, 7 P.L. § 220.16 ( 1) 6 22 N.Y.C.R.R. § 606.5 (b) ( 1) 3 I 16, 19, 32 22 N.Y.C.R.R. § 671.3 16 22 N.Y.C.R.R. § 821.2 (a) 16 22 N.Y.C.R.R. § 1022.11 (a) 16 MISCELLANEOUS ABA Standards for Criminal Justice, Defense Function,4-8.2. 19 iv COURT OF APPEALS STATE OF NEW YORK --------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MARCOS LLIBRE, Defendant-Appellant. --------------------------------------x PRELIMINARY STATEMENT APL # 2014-00303 By permission of the Honorable Jenny Rivera, Associate Judge of the Court of Appeals, granted December 3, 2014, and reconsidered and adhered to on January 28, 2015, appellant Marcos Llibre appeals from an order [M-6609] of the Appellate Division, First Department, entered on June 3, 2014, denying his petition for a writ of error coram nobis. The writ alleged ineffective assistance of counsel based on counsel's failure to advise appellant of the right to appeal or to timely file a notice of appeal on his behalf, from a judgment of the Supreme Court, New York County, dated June 15, 2015, convicting appellant of possession of a controlled substance in the fourth degree (P.L. § 220.09(1)), and sentencing him to five years of probation (Wittner, J., at plea and sentence). The Court has jurisdiction to entertain this appeal pursuant to C. P. L. § 4 5 0. 9 0 ( 1) . The issue raised on this appeal was fully preserved in the coram nobis petition filed in the Appellate Division, First Department, and presents a question of 1 law. See Roe v. Flores-Ortega, 528 U.S. 470 (2000); People v. Syville, 15 N.Y.3d 391 (2010) On January 15, 2015, this Court assigned Robert S. Dean as counsel on appeal. Appellant has fully served his sentence and is currently at liberty. QUESTION PRESENTED WHETHER THE COURT SHOULD GRANT THE PETITION FOR A WRIT OF ERROR CORAM NOBIS WHERE DEFENSE COUNSEL'S FAILURE TO INFORM APPELLANT ABOUT HIS RIGHT TO APPEAL OR TO FILE A NOTICE OF APPEAL ON HIS BEHALF CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL THAT RESULTED IN THE DENIAL OF HIS FUNDAMENTAL RIGHT TO APPEAL. U. S . CONST. AMENDS. V, VI AND XIV; N.Y. CONST. ART. I, § 6. SUMMARY OF ARGUMENT Appellant Marcos Llibre's fundamental right to appeal was forfeited due solely to defense counsel's ineffective assistance in failing to inform him of the right to appeal or to file a notice of appeal on his behalf, when appellant would have wanted to appeal had he been so informed. Under these circumstances, this Court's holding in People v. Syville, 15 N.Y.3d 391 (2010), controls and, as in Syville, coram nobis relief is appropriate since appellant had "no other procedural recourse" to raise this issue. Defendants in New York may appeal their criminal convictions to the Appellate Division "as of right." C.P.L. § 450.10; see People v. Ventura, 17 N.Y.2d 675, 680-81 (2011) ("The 2 invariable importance of the fundamental right to an appeal, as well as the distinct role assumed by the Appellate Divisions within New York's hierarchy of appellate review (see NY Const, Art. VI, §5; see e.g., CPLR 550[c]), makes access to intermediate appellate courts imperative."). Under C.P.L. § 460.10 (1) (a), however, no appeal may go forward unless the defendant files a notice of appeal within 30 days of the imposition of sentence. Accordingly, in all four of our Appellate Divisions, court rules require counsel to inform defendants of the right to appeal, to ascertain if the client wishes to appeal, and if so, to file a notice of appeal on the client's behalf. See, e.g., 22 N.Y.C.R.R. § 606.5(b) (1) (First Department rule). After 30 days, C.P.L. § 460.30 permits the Appellate Division, upon a showing of good cause, to grant an extension of time to file an appeal if the request is made within one year "after the time for the taking of the appeal." In People v. Syville, 15 N.Y.3d 391, 397, 399-400 (2010), this Court held that when a defendant fails to make a timely request to appeal under either C.P.L. § 460.10(1) (a) or C.P.L. § 4 6 O. 3 O due to ineffective assistance of counsel, and the omission could not reasonably have been discovered within the one-year and 30 day period, coram nobis relief is appropriate. Coram nobis may be used to "alleviate [the] constitutional wrong" of the deprivation of a defendant's right to appeal because of counsel's ineffectiveness, when there is "no other procedural recourse. /1 See Syville, People v. Bachert, 69 N.Y.2d 593 3 15 N.Y.3d at 400 (citing (1987)). In Syville, the defendants had requested that notices of appeal be filed and their attorneys admitted that they failed to honor those requests. In People v. Andrews, 23 N.Y.3d 605 (2014), this Court examined other circumstances where coram nobis relief was not found to be appropriate. Under the Court's reasoning in both Syville and Andrews, the circumstances here warrant coram nobis relief. Here, defense counsel failed to inform or consult with appellant about his right to appeal. Nor did he file a notice of appeal on his behalf. As a first offender who did not know to ask and was not informed by counsel or the court about this fundamental right, appellant did not appeal his conviction, despite the devastating effects of that conviction on his life and the presence of viable grounds to appeal. Unlike in Andrews, in his coram nobis petition appellant credibly averred both that he was not informed about the appellate process and that if he had been so informed, he would have appealed. Appellant's waiver of the right to appeal was not valid because it was unexplained and not knowingly, intelligently, and voluntarily made. See People v. Bradshaw, 18 N.Y.3d 257, 264 (2011); People v. Lopez, 6 N.Y.3d 248, 256 (2006); People v. Callahan, 80 N.Y.2d 273, 280, 283 (1992). But even if it were valid, it would have only created a presumption that, unlike in Andrews, was rebutted here by the credible evidence that appellant would have appealed had he been advised of his right to do so. As in Syville, the time within which appellant could have filed a late notice of appeal under C.P.L.§ 460.30 expired due 4 solely to counsel's ineffectiveness. See Roe v. Flores-Ortega, 528 U.S. 470, 478, 480 (2000); 22 N.Y.C.R.R. § 606.5(b) (1). Appellant's petition for a writ of error coram nobis - the only recourse left to him - should have been granted and a notice of appeal deemed to be timely filed. See People v. Syville, 15 N.Y. 3d at 399-400. The order of the Appellate Division denying appellant's petition for a writ of error coram nobis should therefore be reversed. STATEMENT OF FACTS Introduction Appellant Marcos Llibre was arrested on June 8, 2006, and charged with possession of a controlled substance. He was indicted on June 16, 2006 and was granted a Mfil2.P hearing on October 11, 2006 (A. 32, 49) 1 On April 27, 2007, appellant pleaded guilty to possession of a controlled substance in the fourth degree (See April 27, 2007, Plea ["P"] minutes, A. 8), agreed that he had waived his right to appeal after discussing it with counsel, and signed a written waiver (A. 78). The court did not explain the waiver on the record, except to inform appellant that "we haven't done pre-trial hearings yet, so you are not waiving much" (A. 78). There was no explanation of or discussion about any of the rights being waived or the rights retained, nor about the general right to appeal and to file a notice to appeal. On the court file worksheet, the line for 1 Parenthetical numbers preceded by "A" refer to pages of the Appendix. 5 checking that the notice of the right to appeal was given to the defendant was crossed out, and "waived the right to appealn was written on the court worksheet instead (A. 47). Counsel's file, which contained the written waiver, did not indicate appellant was given notice of his general right to appeal (A. 4). Long after appellant's right to appeal under C.P.L. §§ 450.10 and 460. 30 had expired, new counsel investigated a C. P. L. § 440.10 motion for appellant. In the course of investigating and then representing appellant on the § 440 .10 motion, counsel discovered that appellant had not ever filed a notice to appeal in this case. After she informed appellant about this, this coram nobis petition was filed. In the petition, appellant averred that defense counsel did not inform or advise him of his right to appeal, ascertain if he wished to appeal, or file a notice to appeal on his behalf, and if he had known about the right to appeal he would have timely appealed. On June 3, 2014, his petition was summarily denied, without a hearing or written decision. Under these circumstances, this· Court should grant this coram nobis petition and allow appellant the appeal he was denied due to ineffective assistance of counsel. The Charges, Plea and Sentence On June 8, 2006, appellant Marcos Llibre was arrested, and on June 16, 2006, charged under indictment #3016/06 with one count each of third-degree possession of a controlled substance (with intent to sell) (under P.L. §220.16(1)), and fourth-degree 6 possession of a controlled substance (under P.L. §220.09(1)) (See A. 8, 51-55). His case was assigned to defense counsel Jesse Berman (A. 8) On October 11, 2006, a !:1ill2£ hearing was ordered (A. 32, 49). On April 27, 2007, appellant appeared with defense counsel before the Honorable Bonnie Wittner, and pleaded guilty to possession of a controlled substance in the fourth degree (See April 27, 2007, Plea ["P"] minutes, A. 75). Similar to Justice Wittner's directive in the companion case, of Diaz, in this Court's decision in People v. Peque, 22 N.Y.3d 168 (2013), Justice Wittner stated at appellant's plea that, "If you're not here legally, I don't know what your immigration status is, but this could have adverse consequences. Do you understand that?" (A. 77). Appellant, who is a lawful permanent resident, said, "Yes" (A. 77) . The court noted that the right to appeal had been waived (A. 5) The court then accepted the plea and a date of June 15th was set for sentence (A. 78). The following colloquy then occurred: [ADA] GROSS: For the record, the defendant is filling out the waiver of appeal. THE COURT: Have you specifically discussed that with [defense counsel] Berman? THE DEFENDANT: Yes. THE COURT: You are agreeing to do that? THE DEFENDANT: Yes. THE COURT: We haven't done pre-trial hearings so you are not waiving much. But, you are waiving your right to appeal. Do you understand? THE DEFENDANT: Yes. THE COURT: Thank you. MR. BERMAN: He has executed the waiver of [a]ppeal. 7 THE COURT: June 15th (P. 6-7; A. 78-79) 2 At sentencing on June 15, 2007, counsel noted that appellant's probation report was "very favorable" and that the Probation Department recommended he receive a Certificate of Relief from Disabilities (Sentence Minutes, A. 44). There was no further mention of the appeal waiver, the right to appeal generally, or of appellant receiving any written notice of the right to appeal (A. 42-43). The appeal waiver was in the Court file, but not a notice of the right to appeal (See Waiver, A. 45) . 3 On the trial court worksheet, there was a box to check after the words, "Defendant given written notice of his right to appeal." The words "given written notice of" were crossed out and the word "waived" was inserted instead, so it read, "Defendant waived his right to appeal" (See Court Worksheet, A. 47) The box after this edited statement was checked (Id.). There was also a signed waiver in counsel's file, but 2 This quoted colloquy was not part of the plea minutes submitted with the original coram nobis petition, but was discovered by appellate counsel and brought to this Court and respondent's attention only after leave to appeal to this Court was granted on December 3, 2014 (Rivera, J.) (A. 2). Respondent then moved for reconsideration of the leave application, and for dismissal of the grant of leave to appeal, respectively. Appellant opposed both those motions. In an order dated January 28, 2015, Judge Rivera granted reconsideration and adhered to her original decision to grant leave (Rivera, J.) (A. 3) . After respondent asked the full Court to then consider their motion to dismiss, this Court denied respondent's motion to dismiss the grant of leave to appeal, in an order dated March 31, 2015. 3 The written waiver, dated April 27, 2007, stated appellant did not waive his right to "a constitutional speedy trial claim; a challenge to the legality of the sentence promised by the judge; an issue as to my competency to stand trial; or the voluntariness of this waiver" (See Waiver, A. 45). It then added, "However, I understand and agree that I hereby give up all other appellate claims." (Id.). It did not state that the plea itself, and not just the waiver, must be knowingly, intelligently, and voluntarily made. 8 no notice of the right to appeal, nor any notation of a discussion about the right to appeal. The Coram Nobis Petition On August 10, 2012, appellant's case was referred by the Immigrant Defense Project to present counsel, the Center for Appellate Litigation, for the purpose of investigating the filing of a C.P.L. § 440.10 motion in connection with appellant's conviction (A. 7, 25-26). As coram counsel affirmed, during the course of that representation, in which a C.P.L. § 440.10 motion was filed, 4 she learned that a direct appeal had never been filed in this case (A. 7). After appellant learned from coram counsel that he had a right to appeal, he clearly conveyed that he wanted to do so, and coram counsel filed a petition for a writ of error coram nobis on appellant's behalf, on December 20, 2013 (A. 5-72). In his coram nobis affidavit, appellant averred that he now faced deportation as a result of his plea, a consequence of his plea that neither the court nor his attorney ever discussed with him (A. 51) . 5 Nor was he told or advised about his right to appeal, and his attorney did not ascertain whether he wanted to 4 The C.P.L. §440.10 motion was denied on June 27, 2013; leave to appeal to the Appellate Division, First Department was granted on August 28, 2013; and the §440.10 denial was affirmed by the Appellate Division, First Department in a decision and order dated February 3, 2015. People v. Llibre, 125 A.D.3d 422 (1st Dep't 2015). Leave to appeal that decision is currently pending before this Court (Rivera, J.). 5 As a controlled substance offense under immigration law, fourth-degree possession is a deportable offense for which the only potential relief is a discretionary appeal waiver. 8 U.S.C. §1227 (a) (2) (B) (i). The Department of Homeland Security is presently seeking to deport appellant based on this conviction; charges against him were filed in a Notice to Appear dated March 13, 2013. 9 appeal or file a notice of appeal on his behalf (Id.). If he had been advised of his right to appeal, he averred, he would have appealed his conviction because his plea was not knowingly, intelligently and voluntarily made, in violation of due process (Id.) . Appellant attached an affirmation from counsel Jesse Berman to his petition (A. 60) . Berman had signed the affirmation for purposes of the § 440.10 motion in this case, and affirmed that he did not recall the facts of the case (See Affidavit of Jesse Berman, A. 60) . Appellant averred that he had been properly advised of his right to appeal, there was at least one non-frivolous issue he could have raised on appeal, relating to the court's failure to advise him of immigration consequences. That error, which rendered the plea involuntary, in violation of due process, was the reason for remittal of the Diaz case, a companion case to People v. Pegue, 22 N.Y.3d 168 (2013). Diaz involved the same Justice as this case, the Honorable Bonnie Wittner, reciting virtually the identical language about immigration which warranted the remittal in Diaz. This was an issue that appeared on the record which could have been raised on direct appeal, and was barred in appellant's §440.10 action as an issue that could only be raised on direct appeal. See People v. Llibre, 125 A . D . 3 d 4 2 2 ( 1st Dep' t 2015 ) 6 6 Whether a ~ claim can be raised only on direct appeal is an issue that is raised in appellant's application to this Court for leave to appeal the denial of his C.P.L. § 440.10 motion (Rivera, J.). 10 Appellant asserted that counsel did not inform him about the right to appeal, ascertain whether he wanted to appeal, nor timely filed a notice of appeal on his behalf. As a first offender, 7 he did not know to ask. Had he known about his right to appeal, he would have appealed and raised a due process claim. Because he lost his right to appeal due to ineffective assistance of counsel, his coram nobis petition should be granted and a timely notice of appeal should be deemed to have been filed in this case (A. 9-10). Respondent opposed the petition (Respondent's Memorandum of Law in Opposition, dated February 5, 2014, A. 80) , 8 contending appellant's claims were incredible and unsupported and that appellant's waiver of the right to appeal precluded this petition (A. 84). Respondent attempted to distinguish Syville, and alleged that appellant's claim that he was not informed of the right to appeal was time-barred by C.P.L. § 460.30 (A. 84- 85) . Respondent also charged appellant, in contrast to the Syville defendants, with failing to exercise due diligence (A. 85). Respondent accused appellant of seeking a rule that would encourage defendants to delay seeking relief until recollections have faded, which respondent claimed was unlike the Syville situation (A. 85). 7 On information and belief, earlier in 2006 appellant had been arrested and charged with public lewdness, for urinating in public, and received an ACD that same day (A. 10). In 2009, well after his conviction in this case, appellant was arrested but the charges were dismissed; in 2010 and 2012, he pleaded guilty to traffic infractions (A. 10). 8 In describing the underlying offense, respondent's brief contained a factual inaccuracy where they stated, "officer saw defendant take out his cell phone and dial a number" (A. 81) . The complaint actually stated that the co- defendant, Diaz, had made that call (A. 29). 11 On June 3, 2014, the Appellate Division, First Department denied appellant's petition for a writ of error coram nobis, without opinion (A. 4). On December 3, 2014, the Honorable Jenny Rivera granted leave to appeal from that coram nobis denial, and reconsidered and adhered to that leave grant on January 28, 2015 (A. 2-3). ARGUMENT THE COURT SHOULD GRANT THE PETITION FOR A WRIT OF ERROR CORAM NOBIS WHERE DEFENSE COUNSEL'S FAILURE TO INFORM APPELLANT ABOUT HIS RIGHT TO APPEAL OR TO FILE A NOTICE OF APPEAL ON HIS BEHALF CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL THAT RESULTED IN THE DENIAL OF HIS FUNDAMENTAL RIGHT TO COUNSEL. U.S. CONST. AMENDS. V, VI AND XIV; N.Y. CONST. ART. I, § 6. Defense counsel failed to inform appellant of his fundamental right to appeal and failed to file a timely notice of appeal on his behalf. As a result, appellant's right to appeal was forfeited, with devastating effects for appellant, who faces deportation based upon his constitutionally defective conviction. But for counsel's failure to inform him about the appellate process or file a notice to appeal on his behalf, appellant credibly avers that he would have appealed and that he had non-frivolous appellate issues he could have raised. As a first offender, appellant did not know enough about the criminal justice system to ask his lawyer about his appellate rights, and he was entitled to rely on his attorney to explain those rights 12 to him. Because the time within which appellant could have filed a late notice of appeal under C.P.L.§ 460.30 expired due solely to counsel's ineffectiveness, his petition for a writ of error coram nobis should be granted and a notice of appeal deemed to be timely filed. See U.S. Const. amends. V, VI, & XIV; N.Y. Const. art. I, § 6; Roe v. Flores-Ortega, 528 U.S. 470 (2000); People v. Syville, 15 N.Y.3d 391 (2010). A. Counsel Is Required To Inform And Consult With His Client About The Right To Appeal Or To File a Timely Notice Of Appeal On His Behalf. As this Court recognized in People v. Syville, 15 N.Y.3d 391, 397 (2010), where a state, such as New York, provides a statutory appeal "as of right," see C.P.L. § 450.10, both the Federal and State Constitutions guarantee effective assistance of counsel on appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985) i People v. Bachert, 69 N.Y.2d 593, 596 (1987). This guarantee mandates compliance with certain "minimal safeguards": [W]hen a state grants a defendant a statutory right to appeal, due process compels States to make certain that criminal defendants receive the careful advocacy needed "to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over" (Penson v. Ohio, 488 U.S. 75, 85 ... [1988]; see also People v. O'Bryan, 26 N.Y.2d 95 [1970]; People v. Montgomery, 24 N.Y.2d 130 ... [1969]. Thus, a State's processes must provide the criminal appellant with the minimal safeguards necessary to make an adequate and effective appeal. People v. West, 100 N.Y.2d 23, 28, cert. denied, 540 U.S. 1019 (2003) (citation omitted). These "minimal safeguards" include 13 informing the defendant about the right to appeal, having counsel consult with him or her about that appeal, and protecting the defendant's right to have counsel file a valid notice of appeal on his or her behalf. See Flores-Ortega, 528 U.S. 470, 477 (2000) (1) The Duty to Inform About the Right to Appeal In Jones v. Barnes, 463 U.S. 745, 751 (1983), the United States Supreme Court noted that the decision to forego an appeal is a "fundamental decision[] regarding the case" that is a defendant's to make. In Flores-Ortega, the Supreme Court addressed the issue of counsel's duty under the Sixth Amendment to consult with a client after he had been informed by the court of his right to appeal. 528 U.S. at 474. The Court indicated its expectation that "courts ... will find, in the vast majority of cases, that counsel had a duty to consult with the defendant about an appeal." 528 U.S. at 481. In New York, a defendant's right to appeal and to have counsel on that appeal is equally, if not more, fundamental. By statute, defendants may appeal their criminal convictions to the Appellate Division "as of right." C.P.L. § 450.10. Appellate review is viewed as an "integral part of our judicial system," which "safeguard[s] against impropriety or error in the trial of causes." People v. Pride, 3 N.Y.2d 545, 549 (1958); cf. People v. Crimmins, 36 N.Y.2d 230, 238 (1975) (if any appellate court concludes that there has been a "wrong" that "operated to deny any individual defendant his fundamental right to a fair trial, 14 the reviewing court must reverse the conviction and grant a new trial .... "). This Court has also consistently held that "every defendant" has a "fundamental" and "absolute" right to appellate review. People v. Montgomery, 24 N.Y.2d 130, 131, 132 (1969); see also People v. Ventura, 17 N.Y.3d 675, 680-81 (2011); People v. Harrison, 85 N.Y.2d 794, 796 (1995) (same); People v. Borum, 8 N.Y.2d 177, 178-79 (1960) (indigent defendant's appeal is as of right and cannot be conditioned on substantive merit) In order to realize the fundamental right to appellate review, this Court has recognized that "basic fairness and due process" require that counsel inform his client of the right to appeal, and "there is no justification for making the defendant suffer for his attorney's failing." People v. Montgomery, 24 N.Y.2d at 132. The right to counsel is so valued in our State that this Court has consistently offered broader protection to criminal defendants than under federal law. See, e.g., People v. Caban, 5 N.Y.3d 143, 156 (2005) ("our state standard [for ineffective assistance of counsel] offers greater protection than the federal (1990) (providing test"); People v. Bing, 76 N.Y.2d 331, 339 "far more expansive" protection to accused persons "than the Federal counterpart" provides); People v. Settles, 46 N.Y.2d 154, 161 (1978) ("So valued is the right to counsel in this State, it has developed independent of its Federal counterpart. Thus, we have extended the protections afforded by our State Constitution beyond those of the Federal 15 well before certain Federal rights were recognized") (internal citations omitted) . 9 After C.P.L. § 460.30 was adopted in 1971, the Court found in People v. Corso, 40 N.Y.2d 578, 582 (1976), that counsel's "failure to advise the defendant of his right to appeal may, of course, be 'improper conduct' pursuant to C.P.L. § 460.30(5) ." Three years after Flores-Ortega was decided, in People v. West, 100 N.Y.2d at 29, the defendant was found to have waived his direct appeal due to his failure to perfect it for 14 years. The Court held that West was "provided the process he was due. He was given clear instructions on how to apply for poor person relief and ample notice of his right to appeal." Id. The Court noted the Appellate Di vision rules that "require assigned or retained counsel 'immediately after the pronouncement of sentence' to advise a defendant in writing of the right to appeal and the time limitations involved (see 22 NYCRR 606.5[b]; 671.3, 821.2 [a]; 1022.11 [a])." 100 N.Y.2d at 29. In People v. Syville, 15 N.Y.2d 391 (2010), this Court also held that where a state, as in New York, has granted a right to appeal, it must "make that appeal more than a meaningless ritual" by affording the right to counsel on appeal. Id. at 397 (citation omitted) . Syville held that due process prohibits a defendant from "being denied the right to appeal as a consequence of another constitutional right the right to 9 For example, unlike under the federal standard, in the absence of meaningful representation, a specific showing of prejudice is not required for a defendant to prevail on an ineffective assistance of counsel claim. See, .s,__g__,_, People v. Oliveras, 21 N.Y.3d 339 (2013) (defendant deprived of meaningful representation where counsel ineffective, even absent a finding of specific prejudice); People v. Oathout, 21N.Y.3d127 (2013) (same); People v. Benevento, 91 N.Y.2d 708 (1998). 16 effective assistance of counsel on direct appeal." 15 N.Y.3d at 397-98 (citing Evitts, 496 U.S. at 400). For indigent defendants like appellant with assigned counsel, the equal protection clause of the Fourteenth Amendment also requires that the defendant be advised of the right to appeal, as "the primary duty of furnishing legal advice to indigent defendants is a State responsibility." People v. Montgomery, 24 N.Y.2d at 133. In Montgomery, the defendant, who, like appellant, was a first offender, "could not be expected to file a notice to appeal" when counsel had failed to inform him of that right. Id. The Court found that "[a] n indigent defendant cannot lose his right to appeal simply because the courts have deputized a lawyer to fulfill the function and he has failed properly to carry out his duties." Id. The "condition precedent to appellate review is the filing of a notice to appeal," and the 30-day period in which to file a notice of appeal is a "critical time" during which an indigent defendant is entitled to counsel. Id. This Court should clearly pronounce that counsel has an absolute duty in every case to inform his client about the right to appeal, under both the Federal and State Constitutions. Any other rule would place criminal defendants at risk that their lawyers might not appreciate the potential appellate issues and they could lose their fundamental right to appeal. 17 (2) The Duty to Consult About the Right to Appeal In Flores-Ortega, as noted above, the Court had already informed the defendant of his right to appeal, and clearly presupposed that an obligation to inform the defendant of his right to appeal existed. 528 U.S. at 474. However, counsel had neither spoken with her client about appealing, nor filed a notice to appeal on his behalf. In addressing whether there is a federal constitutional duty for counsel to further consult with a client about his appeal under these circumstances, the Supreme Court declined to impose a per se rule. Id. It did, however, impose a duty on counsel to consult about the right to appeal when: there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. Flores-Ortega, 528 U.S. at 480 (internal citation omitted) As to the duty to consult, the Supreme Court held that counsel is required to "advis[e] the defendant about the advantages and disadvantages of taking an appeal, and mak[e] a reasonable effort to discover the defendant's wishes." Id. If the defendant instructs his attorney to file a notice of appeal, counsel must do so, regardless of the merits or viability of the appeal. See Campusano v. United States, 442 F.3d 770, 775 (2d Cir. 2006) (requiring attorney to file notice of appeal on 18 defendant's request where defendant had waived right to appeal at the guilty plea) . Here, to safeguard the right to appeal, counsel not only had a duty to inform his client of the right to appeal, but should have consulted with appellant to ascertain whether he wished to appeal and, if so, filed the notice of appeal for him. See Flores-Ortega, 528 U.S. at 480; see, e.g., People v. West, 100 N.Y.2d at 26 (counsel must inform her client "of the manner for instituting an appeal and obtaining a transcript of the trial, and . the right to seek leave for appointment of counsel and to proceed with the appeal as a poor person."). In the First Department, in which appellant was convicted, court rules mandate that counsel advise his client, in writing, of the right to appeal and "ascertain whether defendant or parolee wishes to appeal ... and, if so, to serve and file the necessary notice of appeal .... " 22 N.Y.C.R.R. §606.S(b) (1); see also ABA Standards for Criminal Justice, Defense Function, 4-8.2 (counsel should explain the right to appeal, give the defendant his or her professional judgment on the merits of an appeal, and explain the advantages and disadvantages of appealing; the decision whether to appeal must be the defendant's own choice and counsel must take whatever steps are necessary to protect that right). That did not happen here. In this case, counsel notably failed in his duty to inform appellant of his fundamental right to appeal, and he also failed to consult with an appeal . As him and ascertain whether he wished to pursue a result, appellant did not know he had that 19 right, and did not appeal within the one-year grace period through no fault of his own. Counsel's ineffective assistance of counsel thus violated both Federal and State constitutional requirements, and deprived appellant of his fundamental right to an appeal. B. Coram Nobis Is Appropriate Where Appellant Lost His Right To Appeal Due Solely To Counsel's Ineffectiveness, And He Would Have Timely Appealed If He Had Been Properly Advised (1) The Outcome Here is Compelled By This Court's Holding in Syville In People v. Syville, 15 N.Y.3d 391 (2010), the Court established that where, as here, a defendant loses his fundamental right to appeal due to ineffective assistance of counsel and through no fault of his own, he is entitled to coram nobis relief. That principle controls in this case, and warrants relief here. This Court long ago addressed the issue of defense counsel's failure to timely file a notice of appeal in People v. Montgomery, when it stated that a defendant is entitled to counsel during the "critical" 30-day period for filing a notice to appeal pursuant to C.P.L. § 460.10(1) (a). In Montgomery, the Court held that: basic fairness and due process require that the right [to appeal] not be dissipated either because the defendant was unaware of its existence or counsel failed to abide by a promise to either file or prosecute an appeal. Montgomery, 24 N.Y.2d at 132 (emphasis added). 20 In 1970, following Montgomery, the Criminal Procedure Code was enacted, and it included a modified version of the Montgomery rule, C.P.L. § 460.30. That statute provides a one- year enlargement of time in which to file a notice of appeal when the defendant's failure to do so within the 30-day period was due to the "improper conduct of a public servant or improper conduct, death or disability of the defendant's attorney," or the "inability of the defendant and his attorney to communicate[] , in person or by mail, concerning whether an appeal should be taken." Although this Court noted that the purpose of the C.P.L. § 460.30 time limit was "to eliminate stale Montgomery claims," it also held that § 460.30 is not an exclusive remedy and does not operate as an "inflexible bar" to relief. People v. Thomas, 47 N.Y.2d 37, 42-43 (1979). In Thomas, the Court held that the prosecution was "estopped" from invoking the § 460.30 one-year time period as a bar to relief because the prosecutor's "omissions," "made more critical by assigned counsel's less than assiduous performance, frustrated the good faith exercise of the defendant's [§ 460.30] right." See also People v. Johnson, 69 N.Y.2d 339 (1987) (defendant's timely efforts to appeal were being thwarted by the State) . In Syville and its companion case, People v. Council, this Court invoked yet another exception to the one-year grace period under C.P.L. § 460.30. It held that a defendant who failed to discover until after the grace period had expired "that a notice to appeal was not timely filed due to ineffective assistance of 21 counsel has recourse through a coram nobis application." 15 N. Y. 3d at 397. The Court in Syville found that "coram nobis continues to be available to alleviate a constitutional wrong when a defendant has no other procedural recourse." Id. at 400. The Court determined that this remedy must continue to be available because the right to due process: prohibits a defendant from being denied the right to appeal as a consequence of the violation of another constitutional right the right to the effective assistance of counsel on direct appeal. Syville, 15 N.Y.3d at 397-98 (citing Evitts, 469 U.S. at 400). A constitutional violation exists where the defendant demonstrates that his appeal rights were forfeited as a result of counsel's deficient performance. 15 N. Y. 3d at 398 (citing Flores-Ortega, 528 U.S. at 484-85). In this situation, under Syville, coram nobis must provide a remedy. In Syville, the defendant discovered two years after his conviction that his attorney had filed an untimely notice of appeal. 15 N.Y.3d at 394-95. Similarly, in Council, the defendant did not learn of his attorney's failure to file a notice of appeal until after the C.P.L. § 460.30 grace period "had long since expired." Id. at 396. In both cases, although the defendants had requested to appeal, their lawyers admittedly failed to file timely notices to appeal for them. Each defendant argued that he "should not be penalized for his attorney's mistake because he had not - and could not reasonably have - discovered the error within the [§ 460. 30] one-year grace period .... " Id. at 395. This Court agreed. 22 Given the importance of the right to appeal and the bedrock principle that such a fundamental right cannot be taken away due to ineffective assistance of counsel, the Court held in Syville that due process requires a remedy and that coram nobis "is the appropriate procedural course in New York." Syville, 15 N.Y.3d at 397. Thus, expiration of the one-year grace period in C.P.L. § 4 6 O. 3 o did not bar consideration of the defendants' coram nobis petitions where defense counsel failed to file a timely notice of appeal and that failure "could not reasonably have been discovered within the one-year period." Id. at 399-400. Since Syville, this Court has continued to emphasize that defendants have the "absolute right to seek appellate review of their convictions." People v. Ventura, 17 N.Y.3d 675, 679 (2011) In Ventura, the Court emphasized "the invariable importance of the fundamental right to an appeal," id. at 680, and reaffirmed Montgomery, 24 N.Y.2d at 132, that "[a]s a matter of fundamental fairness," all criminal defendants must be permitted "to avail themselves of intermediate appellate courts as 'the State has provided an absolute right to seek review in criminal prosecutions.'" Ventura, 17 N.Y.3d at 682. The Court reiterated these principles in People v. Andrews, 23 N.Y.3d 605 (2014). Citing Syville, the Court reiterated that even after the passage of C.P.L. § 460.30, the "ancient writ 'continues to be available to alleviate a constitutional wrong when a defendant has no other procedural recourse.'" 23 N.Y.3d at 611 (citing Syville, 15 N.Y.3d at 400) 23 In the case of defendant Andrews, 10 the Court defined the "primary issue" as whether Andrews' motion for a writ of error coram nobis, "provided sufficient allegations to support Andrews' assertion that his lawyer failed to inform him about the procedure for pursuing an appeal or whether Andrews attorney should have filed a notice of appeal to protect his interests." Id. at 613-14. The question was not whether the writ should apply in these circumstances, but whether sufficient facts had been alleged to support it. 11 Because ineffective assistance of counsel was not established in Andrews, coram relief was denied. Id. at 616. But the Court's rationale suggested that if sufficient facts had been alleged, and Andrews' lawyer had "failed to inform him about the procedure for pursuing an appeal" or "should have filed a notice of appeal to protect his interests," coram nobis relief would and should have been available, as in Syville. Here, sufficient facts were alleged that appellant lost his fundamental right to appeal due to ineffective assistance of counsel through no fault of his own, and therefore the outcome 10 The Court found that defendant Patel had already sought recourse through a C.P.L. § 460.30 motion, which had been denied. 23 N.Y.3d at 614-15. Defendant Kruger had lost a direct appeal, and counsel promised but failed to file for a further discretionary appeal. The Court found there is no federal constitutional right to counsel on a discretionary appeal to a State's highest court, and Kruger had not asserted independent state grounds for relief. Thus, coram relief was not available in Patel or Kruger's situations. Id. at 616. 11 Under the specific facts presented by defendant Andrews, only "perfunctory" and insufficient allegations were made, which were directly refuted by counsel's response that she had informed the defendant of the right to appeal and he chose not to appeal. Id. at 615-16. Nor did Andrews "claim that his attorney or the court failed to inform him about the appellate process," and he did not attempt to explain the reason for the delay in his seeking coram nobis relief. Id. at 616. Here, in contrast, appellant did make these allegations, and counsel nor the file record refuted his claims. 24 of this case is controlled by Syville. 15 N.Y.3d at 15. Neither the Syville rationale nor its holding was limited to defendants familiar enough with the criminal justice system to know to request an appeal. Indeed, the need for coram nobis relief is even greater in a case like this, where appellant did not know about the appellate process, and therefore did not know enough to ask his lawyer to file an appeal, and neither oral nor written notice of the right to appeal was given. Cf. People v. Louree, 8 N.Y.3d 541, 546 (2007) (where trial court did not mention post-release supervision at allocution, "a defendant can hardly be expected to move to withdraw his plea on a ground of which has no knowledge") . Any other rule would result in a defendant losing his right to appeal due to the ineffectiveness of counsel, contrary to the principle of Syville and due process of law, simply because he did not know enough to ask. The relief sought here is limited. As Syville and Andrews established, a defendant would be required to make sufficient allegations, as appellant did here, that he was not informed of the appellate process. Under Syville, a defendant must also show that he had no other recourse (unlike, for example, defendant Patel in Andrews) and the forfeiture of his fundamental right to appeal "could not reasonably have been discovered within the one-year period." However, where those elements have been established, as in this case, the principles enunciated by this Court in Syville mandate that the remedy of coram nobis be made available lest the right to appeal be forfeited due to ineffective assistance of counsel. 25 (2) Counsel's Performance Here Was Deficient and Appellant Was Prejudiced and Entitled to Coram Nobis Relief Here, counsel's performance was materially deficient. As appellant credibly averred, counsel failed to inform him about the appellate process and he was prejudiced as a result. Counsel here could not recall what if anything he had told appellant. Nor is there anything in the record to indicate that counsel advised appellant about his right to appeal, notwithstanding any purported waiver. At appellant's plea, nothing was said about the right to appeal. On the court's worksheet, the line to indicate that the defendant had received notice of the right to appeal was crossed out, and instead it was written that the right to appeal had been waived. Nor was there any notation in counsel's file that the general right to appeal was ever discussed. As appellant credibly averred, he was not informed of his right to appeal or to file a notice of appeal. While there was a written waiver of the right to appeal that was referred to at the plea, there was no meaningful discussion about the waiver on the record, and no indication appellant, a first offender, understood what he was waiving or not. See People v. Rasaun Sanders, N.Y.3d , Slip Op. No. 78, at 6 (June 9, 2015) (waiver sufficient where defendant told he was giving up his "right to appeal your conviction and sentence to the Appellate Di vision, Second Department," and "particularly given this defendant's background, including his extensive experience with the criminal justice system and multiple prior guilty pleas .... ) . Instead, here the court actively misled 26 appellant when it commented that he was "not waiving much" because he had not had pretrial hearings. The court never discussed the language in the written waiver either, which was also misleading. It erroneously indicated appellant was giving up, inter alia, the ability to challenge his plea as not knowing, intelligent and voluntary, in violation of due process - the very claim presented in this case under People v. Peque, 22 N.Y.3d 168 (2013). For a waiver to be valid, the record must establish that the defendant made it voluntarily, intelligently, and knowingly. See Sanders, Slip Op. No. 78, at 4; People v. Bradshaw, 18 N.Y.3d 257, 264 (2011); People v. Lopez, 6 N.Y.3d 248, 256 (2006); People v. Callahan, 80 N.Y.2d 273, 280, 283 (1992); People v. Seaberg, 74 N.Y.2d 1, 11 (1989). That did not happen here. Moreover, as appellant has maintained all along, even if this inadequate waiver were held valid by this Court, it does not defeat his claim that he is entitled to a writ of error coram nobis under People v. Syville, 15 N.Y.3d 391 (2010). Appellant affirmatively asserted that he was not informed of the appellate process or his right to file a notice of appeal regardless of any waiver, and he would have appealed had he been informed of that right. See, e.g, Callahan, 80 N.Y.2d at 285 (even a "bargained-for waiver of the right to appeal does not affect the appealability of a judgment that is otherwise appealable ... "). Even if appellant's waiver were valid, a waiver only raises a rebuttable presumption of an intent not to appeal. 27 See People v. Andrews, 23 N.Y.3d 605(2014). Unlike in Andrews, that presumption was strongly rebutted by the facts here. In Andrews, the waiver created a presumption that the defendant did not intend to appeal. That presumption was not rebutted by the facts, and coram nobis relief was therefore denied. But in Andrews, defense counsel came forward and said that she had informed the defendant of the right to appeal and he had decided not to appeal. 23 N.Y.3d at 615-16. These comments were found to be consistent with the appeal waiver. Id. The defendant also failed to rebut the presumption as he "made only perfunctory claims that he asked his lawyer to file a timely notice of appeal," and made no "claim that his attorney or the court failed to inform him about the appellate process .... " 23 N.Y.3d at 616. Here, the facts are starkly different from Andrews. Defense counsel could not recall this case and his file indicated nothing about the right to appeal aside from the written waiver. There was no meaningful discussion of the appellate process on the record. The court worksheet crossed out the language pertaining to the defendant receiving a notice of the right to appeal. And, critically, appellant did affirmatively assert, unlike in Andrews, that he was not informed of the appellate process, no notice of appeal was filed on his behalf, and that he would have appealed had he been told he had that right. These facts rebutted any presumption created by the waiver, in sharp contrast to Andrews. As appellant averred, he would not have waived his fundamental right to appeal if he had known about it, 28 and counsel's deficient performance thus caused the forfeiture of his right to appeal. Flores-Ortega, 528 U.S. at 483. Also, while a guilty plea can reduce the scope of potentially appealable issues in a case, see Flores-Ortega, 528 U.S. at 480, it by no means precludes them, see, e.g., People v. Tyrell, 22 N.Y.3d 359 (2013), People v. Pegue, 22 N.Y.3d 168 ( 2O13) . Guilty pleas play an integral role in our criminal justice system that serve varied needs that benefit the prosecution and defense. See, e.g., People v. Selikoff, 35 N.Y. 227, 232-33 (1974); see also Missouri v. Frye, 566 U.S. , 132 S. Ct. 1399, 1407 (2012) ("The reality is that plea bargains have become so central to the criminal justice system that defense counsel have responsibilities in the plea bargain process ... to render ... adequate assistance of counsel ... . fl Plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system. fl) (citations omitted; emphasis in original) Many important issues have been litigated through the appeal of guilty pleas; for example, the same due process issue presented by the pleas in Pegue is also present here, and it would have been more than rational for appellant to have sought to appeal here as well. Furthermore, where counsel fails in the duty to consult with his client, that "deficient performance . deprive[s] [defendant] of the appellate proceeding altogether, fl and no presumption of reliability applies to the appeal that never took place. Flores-Ortega, 528 U.S. at 483. A defendant therefore need not show that the appeal would have been meritorious. 29 Rather, to meet the Sixth Amendment prejudice standard of Strickland v. Washington, 466 U.S. 668 (1984), the defendant need only show that counsel's failure "caused the forfeiture of the defendant's appeal" and "but for counsel's deficient performance, [the defendant] would have appealed." Id. at 483- 84; see also Campusano, 442 F.3d at 775 (Flores-Ortega presumption of prejudice arose; court stated that, "[o]ur precedents take very seriously the need to make sure that defendants are not unfairly deprived of the opportunity to appeal, even after a waiver appears to bar appeal.") . Under People v. Syville, 15 N.Y.3d 391, 397 (2010), a defendant must similarly prove only that he was denied the right to appeal due to counsel's ineffectiveness, and that he would have timely appealed but for that error. Appellant is a non-citizen who pleaded guilty to possession of a controlled substance. He was therefore subject to deportation, about which he was not informed, and now faces removal charges based on this conviction. He lives with the very real and constant fear of the immigration consequences of his plea. See Pegue, 22 N.Y.2d at 188-89, 192 (recognizing the ever-increasing rate of deportation of convicted non-citizens and the devastating impact deportation has on their lives and their families) . As appellant has averred, if there had been a chance to clear his record of this conviction, it would have been entirely rational for him to have taken that chance. There was at least one non-frivolous issue that could have been raised if he had appealed including, as noted above, that his plea was 30 not knowingly, intelligently, and voluntarily entered because he was not informed of the immigration consequences of his plea, and the absence of these warnings violated due process. See Peque, 22 N.Y.3d 168. The record also establishes that counsel's failure "could not reasonably have been discovered within the one-year period.n Syville, 15 N.Y.3d at 399-400. Appellant was sentenced on June 15, 2007, and a timely C.P.L. § 460.30 motion should have been filed by July 14, 2008. That time limit ran out because, as appellant credibly averred, he did not know he should appeal because he was never told he had a right to appeal, nor did counsel file a notice to appeal for him. As he averred, had he known about his right to appeal, he would have appealed. As coram counsel stated in her coram nobis affirmation, it was not until appellant's case was referred to the Center for Appellate Litigation for the purpose of investigating a C.P.L. § 440.10 claim, and that motion was being litigated, that the failure to file a notice to appeal was noted, that appellant was informed about this forfeited right, and the coram nobis petition was then filed. As in Syville, by then the C.P.L. § 460.30 one year grace period had long since expired, through no fault of appellant. In sum, the record is devoid of any colloquy or record evidence indicating appellant was ever informed of or consulted about the right to appeal, as the law demands. To the contrary, appellant's credible averments that he was not so advised and that he would have appealed had he been advised, are 31 uncontroverted. Under these circumstances, appellant sufficiently established that counsel here failed to comply with his basic constitutional duty under federal and state law. See Flores-Ortega, 528 U.S. at 478, 480; 22 N.Y.C.R.R. § 606.5(b) (1). But for counsel's deficiency, appellant would have timely appealed his convictions. See Flores-Ortega, 528 U.S. at 484; Syville, 15 N.Y.3d at 397. An uninformed and misled defendant is precisely the type of defendant for whom this Court has stated that coram nobis relief is available. See Syville, 15 N.Y.3d at 399-400. Any other rule would result in the appellate right to appeal being lost due to ineffective assistance of counsel. The Appellate Division's decision denying appellant 1 s coram nobis petition should therefore be reversed and the petition granted so that a timely notice of appeal is deemed filed and appellant is afforded a direct appeal from his convictions in this case. Should there be any factual questions raised by this appeal, the case should, at the least, be remanded for a hearing. 32 CONCLUSION FOR THE REASONS STATED ABOVE, THE APPELLATE DIVISION'S ORDER DENYING CORAM NOBIS RELIEF TO APPELLANT SHOULD BE REVERSED. faL 4_~4.J,0- ROBIN NICHINSKY Of Counsel June, 2015 Respectfully submitted, ROBERT S. DEAN CENTER FOR APPELLATE LITIGATION Attorney for Defendant- Appellant 33