The People, Respondent,v.Marcos Llibre, Appellant.BriefN.Y.November 16, 2015APL-2014-00303 To be argued by HOPE KORENSTEIN (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - MARCOS LLIBRE, Defendant-Appellant. BRIEF AND SUPPLEMENTAL APPENDIX FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 PATRICK J. HYNES HOPE KORENSTEIN ASSISTANT DISTRICT ATTORNEYS Of Counsel AUGUST 4, 2015 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ......................................................................................... 1 QUESTIONS PRESENTED ................................................................................... 2 INTRODUCTION .................................................................................................... 2 THE PLEA AND SENTENCING PROCEEDINGS ....................................... 5 THE CORAM NOBIS APPLICATION ................................................................ 8 SUMMARY OF ARGUMENT .............................................................................. 14 POINT THE APPELLATE DIVISION PROPERLY CONCLUDED THAT DEFENDANT DID NOT FACTUALLY SHOW THAT HIS FAILURE TO APPEAL RESULTED FROM INEFFECTIVE ASSISTANCE OF COUNSEL .................................................................. 16 CONCLUSION ................................................................................................................... 39 TABLE OF AUTHORITIES FEDERAL CASES Evitts v. Lucey, 469 U.S. 387 (1985) .................................................................................. 29 Padilla v. Kentucky, 559 U.S. 356 (2010) (Defendant’s Brief ) ....................................... 24 Rodriquez v. United States, 395 U.S. 327 (1969).............................................................. 30 Roe v. Flores-Ortega, 528 U.S. 470 (2000) .................................................................. 29-31 STATE CASES People v. Andrews, 23 N.Y.3d 605 (2014) ...................................................... 20, 28, 33-34 People v. Bachert, 69 N.Y.2d 593 (1987) .......................................................................... 29 People v. Callahan, 80 N.Y.2d 273 (1992) ......................................................................... 10 People v. Corso, 40 N.Y.2d 578 (1976) .......................................................... 26, 32, 35, 37 People v. Cristache, 29 Misc.3d 720 (Crim. Ct. Queens Co. 2010) ................................ 24 People v. Ennis, 11 N.Y.3d 403 (2008) ............................................................................. 17 People v. Ford, 86 N.Y.2d 397 (1995) ............................................................................... 25 People v. Harrison, 57 N.Y.2d 470 (1982) ........................................................................ 17 People v. Howard, 22 N.Y.3d 388 (2013) ......................................................................... 17 People v. Johnson, 69 N.Y.2d 339 (1987) ................................................................... 32, 35 People v. Llibre, 125 A.D.3d 423 (1st Dept. 2015) ...................................... 4-5, 17, 25, 28 People v. Llibre, 2014 Slip Op 73663(U) .............................................................. 13, 16, 28 People v. McRay, 51 N.Y.2d 594 (1980) ........................................................................... 17 People v. Noriega, 34 Misc.3d 1242(A) (Sup. Ct. N.Y. Co. 2012) ................................. 24 People v. O’Bryan, 26 N.Y.2d 95 (1970) ........................................................................... 29 -ii- People v. Peque, 22 N.Y.3d 168 (2013) ................................................. 4, 15, 24-25, 36-37 People v. Perez, 23 N.Y.2d 89 (2014) .................................................................... 25, 34-36 People v. Sanders, 25 N.Y.3d 337 (2015) .......................................................................... 20 People v. Syville, 15 N.Y.3d 391 (2010) ........................... 10-15, 16, 26-27, 29, 30, 33-37 People v. Thomas, 47 N.Y.2d 37 (1979) ............................................................... 32-33, 35 People v. West, 100 N.Y.2d 23 (2003) .......................................................................... 29-30 People v. Zeng, 33 Misc.3d 1213(A) (Crim. Ct. N.Y. Co. 2011) .................................... 24 FEDERAL STATUTES 8 U.S.C. § 1101(a)(43)(B) ..................................................................................................... 23 8 U.S.C. § 1227(a)(2)(A) ....................................................................................................... 23 8 U.S.C. § 1229b(a)(3) .......................................................................................................... 23 STATE STATUTES 22 N.Y.C.R.R. § 606.5(b) ..................................................................................................... 30 22 N.Y.C.R.R. § 671.3(a) ..................................................................................................... 30 22 N.Y.C.R.R. § 671.3(b) ..................................................................................................... 30 22 N.Y.C.R.R. § 821.2(a) ..................................................................................................... 30 22 N.Y.C.R.R. § 1022.11(a) ................................................................................................. 30 Criminal Procedural Law 440 ........................................................................................ 21, 28 Criminal Procedural Law 440.10 .................................................................................... 3, 27 Criminal Procedural Law 460.10 ........................................................................................ 11 Criminal Procedural Law 460.10(a) .................................................................................... 31 -iii- Criminal Procedural Law 460.15 .......................................................................................... 4 Criminal Procedural Law 460.30 ............................................................................ 11, 32-34 Criminal Procedural Law 460.30(1) ................................................... 2, 5, 11, 16, 31, 35, 37 Criminal Procedural Law 460.30(1)(a) ............................................................................... 32 Penal Law § 70.70(2)(a)(i) .................................................................................................... 23 Penal Law §220.09(1) ............................................................................................................. 1 Penal Law §220.16(1) ....................................................................................................... 3, 23 OTHER AUTHORITIES 29th Report, Year 2006 ........................................................................................................ 36 30th Report, Year 2007 ........................................................................................................ 36 31st Report, Year 2008 ........................................................................................................ 36 32nd Report, Year 2009 ....................................................................................................... 36 33rd Report, Year 2010........................................................................................................ 36 34th Report, Year 2011 ........................................................................................................ 36 35th Report, Year 2012 ........................................................................................................ 36 36th Report, Year 2013 ........................................................................................................ 36 The Foreign-Born Under Custody Population and the Institutional Removal Program at 3-4 (2012), available at http://www.doccs.ny.gov/Research/Reports/2013/ForeignBorn_IR P_Report_2012.pdf ........................................................................................................ 36 New York, Annual Reports of the Chief Administrator of the Courts, available at http://nycourts.gov/reports/annual/index.shtml ................................. 36 -iv- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MARCOS LLIBRE, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Jenny Rivera, Associate Judge of the Court of Appeals, defendant Marcos Llibre appeals from a June 3, 2014 order of the Appellate Division, First Department. By that order, the Appellate Division denied defendant’s application for a writ of error coram nobis. By the underlying judgment, rendered June 15, 2007 in Supreme Court, New York County (Bonnie Wittner, J.), defendant was convicted, upon his guilty plea, of Criminal Possession of a Controlled Substance in the Fourth Degree (Penal Law §220.09[1]) and sentenced to five years of probation. Defendant has served his sentence and is currently at liberty. QUESTIONS PRESENTED 1. Did defendant credibly establish that his plea counsel never informed him of his appellate rights, that he consequently did not ask his attorney to file a notice of appeal, that he would have pursued an appeal if he had timely learned an appeal was available, and that he could not reasonably have discovered the availability of an appeal within the one-year time period provided in CPL 460.30(1)? The Appellate Division answered this question in the negative. 2. If so, should the availability of coram nobis relief be expanded to include defendants who make those showings? The Appellate Division did not reach this question. INTRODUCTION On June 8, 2006, at about 5:07 p.m., police officer John Berberian placed a telephone call to Noel Diaz and said he was looking for “soft,” a street term for powder cocaine. Diaz replied, “How much?” After Berberian asked for a particular amount of cocaine at a specific price, Diaz said, “Hold on, talk to my boy.” At that point, defendant took the telephone and asked, “What do you want?” After Berberian repeated his request for cocaine, defendant said, “No problem, where are you?” Berberian said that he was on East 6th Street between First Avenue and Avenue A in Manhattan. Berberian repeated that information when Diaz got back on the telephone, and Diaz said that they would be there in five minutes. About five minutes -2- later, Berberian saw defendant and Diaz walking toward him. Berberian saw Diaz make a phone call, at which time Berberian’s phone started to ring. Other officers arrested Diaz and defendant, and in a subsequent search they recovered from defendant’s underwear 21 bags of powder cocaine with an aggregate weight of more than one-eighth of an ounce.1 On June 16, 2006, by New York County Indictment Number 3016/2006, a grand jury charged defendant and Diaz with Criminal Possession of a Controlled Substance in the Third Degree (Penal Law §220.16[1]) and Criminal Possession of a Controlled Substance in the Fourth Degree. On April 27, 2007, defendant appeared with counsel before the Honorable Bonnie G. Wittner and pled guilty to fourth- degree criminal possession of a controlled substance, in full satisfaction of the indictment, in exchange for a sentence of five years’ probation. Defendant also waived his right to appeal both orally and in writing. On June 15, 2007, defendant was sentenced as promised. Defendant never filed a notice of appeal.2 Some five years later, on or about November 3, 2012, defendant filed a motion to vacate the judgment pursuant to Criminal Procedure Law 440.10 on the grounds that his counsel had rendered ineffective assistance and that the trial court’s failure to 1 The facts stated in this paragraph are gleaned from the Felony Complaint, Indictment, and Voluntary Disclosure Form. 2 On June 10, 2008, Diaz pled guilty before Justice Wittner to third-degree criminal possession of a controlled substance (Penal Law §220.16[1]). On July 2, 2008, Diaz was sentenced to a jail term of one year. Diaz did not appeal his conviction. -3- advise him on the record concerning the risk of deportation violated his due process rights. Justice Wittner denied that motion by decision dated June 27, 2013. Defendant filed an application for leave to appeal to the Appellate Division pursuant to CPL 460.15, which was granted by the Honorable Rolando T. Acosta on August 25, 2013. By papers dated December 20, 2013, defendant also petitioned the Appellate Division for a writ of error coram nobis, alleging that his plea counsel had rendered ineffective assistance by failing to inform him of his appellate rights and file a notice of appeal. By order dated June 3, 2014, the Appellate Division denied his application. Defendant applied for leave to appeal to this Court, and Judge Rivera granted that application on December 3, 2014. On the still-pending collateral appeal, defendant claimed that his plea counsel had rendered ineffective assistance by failing to advise him of the deportation consequences of his guilty plea and by affirmatively misadvising him about those consequences. Defendant also claimed, citing People v. Peque, 22 N.Y.3d 168 (2013), that his due process rights were violated by the plea court’s on-the-record statement regarding immigration consequences. By decision dated February 3, 2015, the Appellate Division, First Department unanimously affirmed the order denying post- judgment relief. People v. Llibre, 125 A.D.3d 423 (1st Dept. 2015). In the course of addressing defendant’s Peque claim, the court observed that “Defendant has not established any cognizable justification for his failure to appeal. . . . Moreover, -4- defendant’s argument that his failure to appeal was the product of ineffective assistance of counsel has been rejected by this Court on defendant’s coram nobis motion.” Id.3 On this appeal of the Appellate Division’s coram nobis ruling, defendant argues that he credibly established that his plea counsel never informed him of his appellate rights, that he consequently did not ask counsel to file a notice of appeal, that he would have pursued a direct appeal if he had timely learned an appeal was available, and that he could not reasonably have discovered the availability of an appeal within the one-year time period provided by the Legislature in CPL 460.30(1). Defendant further contends that, based upon those alleged factual showings, he should be granted a belated appeal under a proposed expansion of coram nobis. THE PLEA AND SENTENCING PROCEEDINGS On April 27, 2007, defendant and his counsel appeared before Justice Wittner for hearing and trial. The prosecutor stated that the People were “ready for a 2:15 call,” and the court informed the parties that it would “not giv[e] an adjournment.” Defense counsel then announced, “I think we have a disposition” (Plea: A74). After a 3 Defendant applied for leave to appeal the Appellate Division’s decision on his post- judgment claims to this Court. As of the writing of this brief, that application is pending before Judge Rivera. -5- discussion off the record, the prosecutor announced that the People were “offering the C felony, count two on the indictment, probation, with waiver of appeal” (Plea: A74). Defendant agreed to plead guilty to fourth-degree criminal possession of a controlled substance – the second count of the indictment – with the provision that defendant “will allocute that he didn’t intend to sell” the drugs (Plea: A74-75). Justice Wittner confirmed with defendant that he had discussed the case and the decision to plead guilty with his attorney, and that he wished to plead guilty to the second count of the indictment (Plea: A75). The judge then asked if it was true that, on June 8, 2006, defendant had “knowingly and unlawfully possessed twenty-one Zip- locs of cocaine, and the weight of it, the aggregate weight was over one-eighth of an ounce.” Defendant replied, “Yes” (Plea: A75-76). The court informed defendant that he was giving up the right to a jury trial, to require the People to prove his guilt beyond a reasonable doubt, to cross-examine the People’s witnesses, to present a defense, and to testify on his own behalf or remain silent, and defendant confirmed that he understood that by pleading guilty he was giving up those rights (Plea: A76). Justice Wittner confirmed with defendant that no one had forced him to plead guilty and no one had promised him anything but a sentence of five years of probation (Plea: A76-77). The court and defendant also had the following exchange: THE COURT: If you are not here legally, I don’t know what your Immigration status is, but this could have adverse consequences. Do you understand that? -6- THE DEFENDANT: Yes (Plea: A77). The court also confirmed defendant’s understanding that he agreed to waive his right to appeal, and the following colloquy ensued: [THE PROSECUTOR]: For the record, defendant is filling out the waiver of appeal.4 THE COURT: Have you specifically discussed that with [defense counsel]? 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. 4 That written waiver, which was signed by both defendant and his counsel and dated April 27, 2007, stated: I hereby waive my right to appeal from this judgment of conviction. I understand that this waiver does not apply to any of the four following issues: 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. However, I understand and agree that I hereby give up all other appellate claims. I execute and sign this waiver knowingly and voluntarily after being advised by the Court and after consulting with my attorney, Jesse Berman, standing beside me. I have had the full opportunity to discuss these matters with my attorney and any questions I may have had have been answered to my satisfaction. I have agreed to give up my appellate rights because I am receiving a favorable plea and sentence agreement. -7- [DEFENSE COUNSEL]: He has executed the waiver of appeal (Plea: A77-78). On June 15, 2007, Justice Wittner sentenced defendant as promised. Defendant never filed a notice of appeal. THE CORAM NOBIS APPLICATION On December 20, 2013 – more than six years after his time to file a notice of appeal had expired – defendant filed a petition for a writ of error coram nobis, in effect seeking an extension of time to file a notice of appeal. In his affidavit in support of his claim, dated December 4, 2013, defendant alleged that his plea counsel – Jesse Berman, Esq. – had rendered ineffective assistance in that he had “fail[ed] to advise me about my right to appeal, to ascertain if I wished to appeal, or to file a notice of appeal on my behalf” (Defendant’s Affidavit: A25). He claimed that Berman did not “speak with me about a right to appeal or any appeal options” (Defendant’s Affidavit: A26). Defendant acknowledged that both he and his attorney had signed a written appeal waiver, and copies of that waiver were in both the Supreme Court file and in his plea counsel’s file (Defendant’s Affidavit: A26; Counsel’s Affirmation: A9; Written Waiver: A45). However, defendant contended that the court “told me I was waiving my right to appeal, but did not explain what that meant” (Defendant’s Affidavit: A25-26). Defendant stated, “If my attorney had -8- properly advised me about my right to appeal, I would have appealed this conviction and challenged my plea as not knowingly, intelligently and voluntarily made, in violation of due process” (Defendant’s Affidavit: A26). Defendant also included an affirmation from his plea counsel, Jesse Berman, which had been prepared in support of defendant’s earlier 440 motion, in which Berman explained that he had no independent recollection of defendant’s case, but that he “would generally advise a non-citizen client that his plea might affect his immigration status” (Berman Affirmation: A57-58). Berman observed that his copy of the criminal complaint had his handwritten notation that defendant “was from the Dominican Republic, had a green card, and had lived in the United States for 18 years” and that that notation was “consistent with [Berman’s] general practice to ask about immigration status and make a notation of this on the criminal complaint form” (Berman Affirmation: A58). Berman also averred, “My file in this case indicates that I knew to avoid a plea involving an intent to sell element for immigration purposes” (Berman Affirmation: A58). Berman’s affirmation, however, makes no mention of his common practices regarding appeal waivers and notices of appeal. Defendant’s appellate counsel submitted an affirmation in support of the coram nobis petition, alleging that “the plea and sentence minutes do not contain any discussion about [defendant’s] right to appeal” (Counsel’s Memorandum of Law: A13; see Counsel’s Affirmation: A9-10; Argument: A17-18, A21). Counsel also pointed to the court endorsements in the Supreme Court file, in which the pre-printed words, -9- “Defendant given written notice of his right to appeal” had been amended to read, “Defendant waived his right to appeal” (Counsel’s Affirmation: A9-10). Counsel also alleged that Berman “did not inform [defendant] about the right to appeal, ascertain whether he wanted to appeal, and did not file a timely notice of appeal on his behalf” (Counsel’s Affirmation: A11; see Counsel’s Affirmation: A10). Counsel averred that, had defendant been properly advised about his right to appeal, he would have raised an issue on appeal regarding whether the plea court had properly advised him of the immigration consequences of his plea, citing People v. Peque (Counsel’s Affirmation: A11-12). In a memorandum of law, counsel asserted that the written appeal waiver was invalid, citing People v. Callahan, 80 N.Y.2d 273 (1992), in which this Court had invalidated a written appeal waiver where there was “no record discussion between the court and defendant concerning the waiver.” See id. at 283. (Memorandum of Law: A18). Counsel added that, “even if the waiver was valid, it still did not preclude an appeal of any and all possible issues (Memorandum of Law: A18). Counsel contended that defendant would have appealed his conviction on the ground that his plea was not knowing and voluntary, and his failure to do so was due solely to his plea counsel’s ineffective assistance (Memorandum of Law: A19-21). Counsel argued that under such circumstances a writ of error coram nobis should be granted under a proposed expansion of People v. Syville, 15 N.Y.3d 391 (2010) (Memorandum of Law: A14, A22). -10- The People opposed defendant’s motion. The People pointed out that, pursuant to the Criminal Procedure Law, a defendant may seek leave to file a late notice of appeal within one year after the 30-day deadline to file a notice of appeal had passed (People’s Coram Response: A82); See CPL 460.10, 460.30(1). The Court of Appeals, in People v. Syville, 15 N.Y.3d at 400, had held that if a defendant can demonstrate that his attorney failed to comply with a timely request to file a notice of appeal, and the omission could not reasonably have been discovered within the one- year time limit imposed by CPL 460.30, then the defendant may seek a writ of error coram nobis authorizing him to pursue an appeal (People’s Coram Response: A83). The People contended that defendant’s claim that his attorney did not speak with him about his right to appeal was “incredible” and “flatly contradict[ed]” by the written waiver of appeal, which defendant and his attorney signed in open court on April 27, 2007 (People’s Coram Response: A84). That document stated that defendant had “had a full opportunity” to discuss the waiver with his attorney, that any questions regarding the waiver were answered to defendant’s “satisfaction,” and that defendant “agreed to give up [his] appellate rights” (People’s Coram Response: A84). Further, the People observed that defendant confirmed with the court at the plea proceeding that, as part of his guilty plea, he was waiving his right to appeal -11- (People’s Coram Response: A84).5 Thus, the record clearly showed that defendant and his attorney had spoken about his appellate rights, and defendant had elected to waive those rights. The People concluded that defendant’s claim that he was not told of his appellate rights was “simply based on defendant’s self-interested say-so” (People’s Coram Response: A85). Further, the People noted that defendant had made no showing of due diligence, and the clearly dilatory timing of defendant’s coram application also exposed his claim as unworthy of belief. Indeed, defendant’s affidavit was completely silent about when he allegedly first learned of his appellate rights. Under those circumstances, the People argued that defendant, who had obtained a non- incarceratory disposition, “could easily abuse [his proposed] Syville exception by purposely delaying the appeal,” even long after he was informed that he could appeal, “in order to prejudice the People and prevent a successful retrial” (People’s Coram Response: A85). In that same vein, the People observed that, after his conviction in the instant case, defendant was arrested on February 27, 2010 for driving while intoxicated, and subsequently convicted, upon his guilty plea, of Operating a Motor Vehicle While Impaired, but did not file a notice of appeal after that conviction (People’s Coram 5 Because the plea transcript relied upon by both parties before the Appellate Division was incomplete (see infra at 13), no reference was made to defendant’s express acknowledgement that he had specifically discussed his appeal waiver with counsel (see A77- 78). -12- Response: A85-86). The People found it “hard to believe that none of his attorneys advised him of his right to appeal, and that he only recently learned that he could appeal his conviction” (People’s Coram Response: A86). In light of defendant’s subsequent criminal history, the People argued that “defendant was perfectly content with his plea bargain in the instant case,” and he only had “second thoughts due to the possibility of deportation” (People’s Coram Response: A86). Under those circumstances, defendant’s claim did not present the “rare case” where relief may be granted under Syville (People’s Coram Response: A83-84). On June 3, 2014, the Appellate Division denied defendant’s motion for a writ of error coram nobis. People v. Llibre, 2014 Slip Op 73663(U). The Appellate Division observed that defendant had moved “for a review of his claim of ineffective assistance of trial counsel.” Id. After “due deliberation,” the Appellate Division found that claim to be without merit. Id. On July 21, 2014, defendant sought leave to appeal that order to this Court. On December 3, 2014, the Honorable Jenny Rivera granted leave. Thereafter, it came to the attention of the parties that the plea minutes submitted to both the Appellate Division and Judge Rivera in connection with the coram nobis petition were incomplete because the court reporter had stopped transcribing the notes at a break in the proceedings, thereby omitting an on-the-record colloquy concerning defendant’s appeal waiver (Compare A39 with A78-79). On December 23, 2014, the People submitted to this Court a letter from a supervisory court reporter describing those -13- circumstances, and moved for reconsideration of the leave application or for dismissal of the appeal.6 On January 28, 2015, Judge Rivera granted the People’s motion for reconsideration and adhered to her decision to grant leave. On March 31, 2015, this Court denied the People’s motion to dismiss the appeal. SUMMARY OF ARGUMENT Defendant claims that he established that his plea counsel never informed him of his appellate rights, that due to that failure he did not ask his attorney to file a notice of appeal, that he would have appealed had he known he had the right to do so, and that he could not have discovered his appellate rights within the one-year statutory time bar. Defendant then asks this Court to expand the holding of Syville to grant belated appeals to defendants who make those showings. But defendant’s factual claim that his failure to appeal was the product of ineffective assistance of counsel was squarely rejected by the Appellate Division, which implicitly found his uncorroborated claims unworthy of belief. That credibility determination is a mixed question of law and fact that is unreviewable by this Court. The Appellate Division had good reason to reject defendant’s claims, since the record evidence showed that defense counsel did inform defendant of his appellate rights in the course of informing him about the appeal waiver, that defendant did not 6 A copy of the letter is appended to this brief. -14- appeal because he had no wish to do so, and that, even if defendant had not known of his appellate rights at the time of plea and sentence, he certainly could have discovered those rights within a year after his time to file a notice of appeal expired. Indeed, the record evidence made clear that defendant did not become interested in appealing his conviction until more than six years after the conviction, when this Court’s Peque decision gave him a new incentive to do so. In short, defendant has plainly failed to make the factual showing that would be necessary to obtain coram nobis relief even under his own proposed rule. Even if defendant had made that factual showing, his proposed expansion of Syville would be unwarranted. Syville and related cases stand for the proposition that coram nobis relief is rarely appropriate and allows a defendant to take a belated direct appeal only where the defendant’s timely attempt to appeal was frustrated by the State or his counsel or where he was misled into believing that the appeal was going forward without any further action on his part and therefore had no occasion to exercise diligence with respect to prosecution of that appeal. Defendant’s proposed new rule – under which coram nobis relief would presumptively be available many years after conviction to any defendant who could claim without conclusive contradiction that he was not fully informed of his right to appeal – would completely negate the clear statutory directive that a defendant is permitted to seek an extension of time to file a notice of appeal “not more than one year” after the notice could have -15- been timely filed where the delay was due to “improper conduct of defense counsel.” CPL 460.30(1). POINT THE APPELLATE DIVISION PROPERLY CONCLUDED THAT DEFENDANT DID NOT FACTUALLY SHOW THAT HIS FAILURE TO APPEAL RESULTED FROM INEFFECTIVE ASSISTANCE OF COUNSEL (Answering Defendant’s Brief). On appeal, defendant contends that he credibly established below that his plea counsel never informed him of his appellate rights, that he consequently did not ask counsel to file a notice of appeal, that he would have timely appealed if fully informed of his rights, and that he could not reasonably have discovered his appellate rights within one year (Defendant’s Brief at 9-10, 11, 12, 19, 25, 28). He then contends that a defendant who credibly establishes all those facts should be granted a writ of error coram nobis under a dramatic new expansion of the doctrine first announced in People v. Syville, 15 N.Y.3d 397 (2010). The factual branch of defendant’s claim is unreviewable and neither branch has any merit. A. Initially, the factual part of defendant’s claim was properly rejected by the Appellate Division. People v. Llibre, 2014 Slip Op. 73663(U). And lest there be any doubt about the basis of that ruling, the Appellate Division explained in connection -16- with defendant’s 440 appeal that “defendant’s argument that his failure to appeal was the product of ineffective assistance of counsel has been rejected by this Court on defendant’s coram nobis motion.” People v. Llibre, 125 A.D.3d at 423. Defendant’s challenges to the Appellate Division’s ruling present classic mixed questions of law and fact, which are generally beyond the scope of this Court’s review power so long as there is record support for the lower court’s determination. See, e.g., People v. Howard, 22 N.Y.3d 388, 403 (2013). This “rule applies where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn.” Id. quoting People v. Harrison, 57 N.Y.2d 470, 477 (1982); People v. McRay, 51 N.Y.2d 594, 601 (1980). In a nutshell, the Appellate Division found that defendant failed to credibly establish several essential but uncorroborated factual claims: that his attorney failed to inform him of his appellate rights, that he consequently did not ask counsel to file a notice of appeal, that he would have appealed his conviction had he been informed of the availability of an appeal, and that he could not have discovered his appellate rights within one year after his time to appeal expired. Defendant is asking this Court to re-examine that determination, which falls beyond the scope of its review power. See, e.g., People v. Ennis, 11 N.Y.3d 403, 411 (2008) (defendant’s claim of a conflict of interests was a mixed question of law and fact, where “the Appellate Division was not required to accept defendant’s allegations at face value”). -17- The record fully supports the Appellate Division’s ruling, as it shows that defendant was well aware of his appellate rights, that he had no wish to appeal at the time of his plea and sentencing, and that there would have been no impediment to his learning of his appellate rights within a year after his time to appeal expired. On the first point, a waiver of appeal was an important component of the plea negotiations and defendant was an active participant in those negotiations. Defendant and his attorney had ample time to discuss the relative merits of pleading guilty, since defendant was indicted on June 16, 2006, and did not plead guilty until April 27, 2007, more than ten months later. Thus, the pre-plea factual record supports the Appellate Division’s apparent conclusion that during the long period while the charges were pending, Berman discussed with defendant his appellate rights and the proposed waiver of those rights. That conclusion was squarely borne out by the events of the plea proceeding, which began with the prosecutor’s announcement that the already-agreed-upon plea deal included a waiver of appeal. Thereafter, Justice Wittner discussed with defendant the trial rights he was giving up by pleading guilty, including the right to require the People to prove his guilt beyond a reasonable doubt, the right to remain silent or testify on his own behalf, and the right to call witnesses and cross-examine the People’s witnesses (Plea: A76). Then, after defendant admitted his guilt, the court turned to the waiver of appeal (Plea: A77-78) and paused the proceedings while defendant and Berman reviewed the written waiver (see Letter of Susan Pearce-Bates: -18- SA1). During that time, the prosecutor noted for the record that “defendant is filling out the waiver of appeal.” The court pointedly asked defendant if he had “specifically discussed” the appeal waiver with his attorney, and defendant replied in the affirmative. The court then asked if defendant was “agreeing” to waive his right to appeal and defendant said, “Yes.” Finally, the court noted that defendant had “not done pre-trial hearings so you are not waiving much. But, you are waiving your right to appeal. Do you understand?” Defendant answered, “Yes.” Defense counsel then observed that defendant “has executed the waiver of appeal” (Plea: A77-78). In the written waiver – which both defendant and his attorney signed before the plea court – defendant affirmed his understanding that certain issues survived the appeal waiver, including the voluntariness of the waiver itself. Defendant further confirmed that he was “giv[ing] up all other appellate claims,” and that he was doing so “knowingly and voluntarily” (Waiver of Appeal: A45). Defendant also confirmed that he was waiving his appellate rights after “hav[ing] had a full opportunity to discuss these matters with my attorney, and any questions I may have had have been answered to my satisfaction” (Waiver of Appeal: A45).7 7 Defendant repeatedly points out that, on the Supreme Court worksheet, there are pre-printed words stating, “Defendant given written notice of his right to appeal” with a box next to it, and that the judge checked the box and signed her name but crossed out the words “given written notice” and wrote “waived” (Defendant’s Brief at 5-6, 8, 28). Defendant apparently means to suggest that the alteration constitutes an affirmative indication that he was not actually given written notice of his right to appeal, but it is more -19- (Continued…) It is clear that this record “sufficiently demonstrates that defendant knowingly and intelligently waived his right to appeal.” People v. Sanders, 25 N.Y.3d 337 (2015). As in Sanders, the court here “adequately described the right to appeal without lumping it into the panoply of rights normally forfeited upon a guilty plea.” Id. The court also, as in Sanders, “obtained defendant’s confirmation that he had discussed the waiver of the right to appeal with his attorney and that he was waiving such right in consideration of his negotiated plea.” Id. But, even if the waiver were found to be invalid, that would not diminish the strength of the factual inference that defendant intended that his case would end with the plea and sentence. Defendant executed “a written waiver of his right to appeal in the presence of the judge who presided at the guilty plea proceeding, which presumptively demonstrated a desire not to seek appellate review.” People v. Andrews, 23 N.Y.3d 605, 615 (2014). Defendant grudgingly concedes that, under Andrews, the appeal waiver creates a “rebuttable presumption of an intent not to appeal” (Defendant’s Brief at 27), but he insists that his case is “starkly different” because he, unlike the defendant in Andrews, successfully rebutted that presumption. Unable to point to more than his own unsubstantiated and blatantly self-serving claims that he was not told of his appellate rights (Defendant’s Brief at 27-28), defendant makes much of plea counsel’s likely that the court meant to convey that, beyond merely being informed of his right to appeal, defendant had validly waived that right. -20- ______________________ (…Continued) general statement that he “could not recall what if anything he had told” defendant (Defendant’s Brief at 26; see Defendant’s Brief at 10, 28, both citing A57). But, contrary to defendant’s clear implication, that statement was made in the specific context of a claim concerning deportation advice; Berman made no mention in his affirmation about whether he recalled his discussions with defendant regarding the appeal waiver (Berman Affirmation: A57-58). And the absence of any such specific statement is curious, in light of Berman’s concerted efforts to reconstruct the record of what he told defendant regarding the immigration consequences of his plea, and his obvious diligence in securing for defendant a plea deal that would help insulate him from those consequences.8 At a minimum, if asked, Berman could, and clearly would, have stated his general practices with respect to appeal waivers and notices of appeal – as he did with immigration status. The only reasonable conclusion to be drawn from Berman’s failure to mention anything about the appeal waiver in his affidavit is that he was never asked what he recalled about the appeal waiver. Mr. Berman’s non- 8 Defendant mentions in his CPL 440 complaint that his attorney failed to inform him of the immigration consequences of his guilty plea (Defendant’s Brief at 9, 30), despite the rejection of that claim by both the Supreme Court and the Appellate Division. He does not mention that in his 440 motion, he submitted not only Berman’s affirmation drafted for that motion, but also an affirmation that Berman had submitted with the 18-B voucher for his work on defendant’s case. There, Berman stated that, “defendant is not a United States citizen, and it was important, for immigration purposes, that his guilty plea not encompass any intent to sell.” Berman further explained that he “also had numerous meetings and conversations with defendant during the extended plea negotiations.” For perhaps obvious reasons, defendant failed to include the 18-B affirmation with his subsequent coram nobis application, but he should not be permitted to ignore the record of his 440 claim while touting its merit here. -21- recollection of a different matter is the only basis upon which defendant can characterize as “credibl[e]” his current contention that his counsel failed to tell him anything about his appellate rights (Defendant’s Brief at 4, 9-10, 19, 27, 28), even as the plea minutes strongly rebut that contention. In claiming that he did not ask for a notice of appeal to be filed as a “consequence” of or “due to” plea counsel failing to inform him of his appellate rights (Defendant’s Brief at 2, 4-5, 6, 11, 13, 24), defendant seems to suggest that his very failure to appeal supports his factual claim that his attorney did not properly advise him. But there is ample evidence that defendant fully intended that his guilty plea would end his criminal case. In the course of arguing that his attorney was ineffective for failing to advise him of the immigration consequences of his plea, defendant claimed that Berman induced him to plead guilty by advising him that if he pled guilty, he “would just get probation and the case would be over” (Defendant’s Affidavit: A54). Defendant thus implicitly acknowledges his desire that his criminal case end with his guilty plea, the obvious goal of any plea negotiation. Beyond that, defendant likely wished for the litigation to end quickly and quietly in the hope that he would not draw the attention of the immigration authorities. Under those circumstances, defendant had every reason to waive his right to appeal and no reason to file a notice of appeal, or to ask his attorney to do the same. Defendant contends that he would have appealed the conviction had he known that his guilty plea carried potential immigration consequences (Defendant’s Brief at -22- 12, 30-31), but – leaving aside the record evidence that defendant did know that his plea carried potential immigration consequences – defendant had little reason to appeal such a beneficial plea deal. Defendant was caught red-handed in possession of 21 bags of cocaine after arranging by telephone to sell the drugs to a police officer. Accordingly, defendant was charged with Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]), a class B felony that includes intent to sell. If found guilty as charged, defendant could have received a determinate prison sentence of anywhere from one to nine years. Penal Law § 70.70(2)(a)(i). Defendant also would have been subject to mandatory deportation.9 Instead, defendant was allowed to plead guilty to fourth-degree criminal possession of a controlled substance and received a sentence of probation. Since defendant pled guilty to simple possession, a crime which did not include the element of intent to sell, he was eligible under federal law to apply for cancellation of removal. See 8 U.S.C. § 1229b(a)(3).10 Beyond that, the fact that defendant received a sentence that did not include incarceration – when faced with a lengthy prison term – left no doubt that defendant received a substantial benefit in exchange for his guilty plea. Indeed, 9 Under federal law, an alien “shall” be deported following conviction of a controlled substances offense or an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A). 10 Under federal law, an aggravated felony is defined as, among other things, “illicit trafficking in a controlled substance.” 8 U.S.C. 1101(a)(43)(B). Third-degree possession of a controlled substance falls within the category of illicit trafficking; thus, cancellation of removal is not available to defendants who have been convicted of that crime. -23- Berman further addressed the possible deportation consequences of the guilty plea by securing for defendant a non-incarceratory sentence. Had defendant gone to prison for his drug crime, it would have increased his chances of deportation, since Immigration and Customs Enforcement “specifically targets incarcerated individuals.” People v. Noriega, 34 Misc.3d 1242(A) (Sup. Ct. N.Y. Co. 2012); see People v. Zeng, 33 Misc.3d 1213(A) (Crim. Ct. N.Y. Co. 2011); People v. Cristache, 29 Misc.3d 720 (Crim. Ct. Queens Co. 2010). Thus, while defendant laments the “devastating consequences” that resulted from Berman’s failure to file a notice of appeal (Defendant’s Brief at 12), the plea that Berman negotiated for defendant greatly lessened the probability that those consequences would come to pass. And, to the extent that defendant suggests that his counsel was ineffective under Padilla v. Kentucky, 559 U.S. 356 (2010) (Defendant’s Brief at 30), Berman’s knowledge of immigration issues and his skill in securing a plea for defendant that protected him from those issues as much as possible in fact went above and beyond Padilla’s requirements for effective assistance of counsel, which do not require criminal defense lawyers to familiarize themselves with aspects of immigration law such as discretionary procedures for relief from immigration consequences. See Padilla v. Kentucky, 559 U.S. at 369. Of course, it is no coincidence that defendant applied for a writ of error coram nobis only in December 2013, the month after this Court held in People v. Peque, 22 N.Y.3d 168 (2013), that plea courts have a duty to advise defendants about the -24- possible immigration consequences of their pleas. Indeed, defendant makes no secret of the fact that he now wishes to challenge his conviction on Peque grounds (Defendant’s Brief at 10, 27, 30) but is currently precluded from doing so because Peque claims – which are entirely record-based – must be raised on direct appeal. See People v. Llibre, 125 A.D.3d at 423. Defendant even claims that he would have raised a Peque claim years before that case was decided (Defendant’s Brief at 10-11), but there is no evidence that that is in fact the case. Indeed, defendant identifies no basis for any belief on his part during the period when he could have timely appealed that his plea was in fact involuntary or even that he could plausibly claim that it was in an appeal. See People v. Ford, 86 N.Y.2d 397, 403 (1995) (explicitly holding the court is not required to advise about deportation, overruled by Peque). Thus, there is no basis for crediting defendant’s claims that counsel failed to ascertain whether defendant wanted to appeal or that defendant would have appealed if informed (Defendant’s Brief at 2, 4, 9-10, 11, 12, 19-20, 26, 27, 28, 30-31). This Court has declined to entertain stale appeals that defendants attempted to resurrect in order to capitalize on “belated changes of strategy.” People v. Perez, 23 N.Y.2d 89, 100 (2014). It should do the same here, and reject defendant’s assertion that he would have raised an unheard-of Peque claim six years ago but for his counsel’s alleged conduct. Defendant has also utterly failed to show that he could not reasonably have discovered the omission to file the notice of appeal within the one-year statutory grace -25- period. Defendant identifies no false or misleading information provided to him regarding his appellate rights, or any affirmative impediments to his learning about them. Instead, defendant simply (and repeatedly) asserts in conclusory fashion that he has made such a showing (Defendant’s Brief at 25, 28, 31). But there is no factual support for that claim. Defendant was aware from his appeal waiver that he retained some appellate rights, since the waiver explicitly said that it did not apply to all potential appellate claims. Defendant did not receive a prison sentence as a result of his guilty plea and, as a citizen, he was free to call his attorney at any time if he had questions regarding a potential appeal. Moreover, defendant was on probation, and thus required to visit his probation officer on a monthly basis. Had defendant wished to raise any appellate issues about his conviction, he could have broached the issue with either his defense lawyer or his probation officer. Indeed, while defendant claimed to have learned from his probation officer that his guilty plea may carry deportation consequences (Defendant’s Affidavit: A54), he is careful to never state precisely when or under what circumstances he learned of his appellate rights.11 In short, he seems to believe, despite Corso, that he should benefit from a nearly conclusive presumption that a defendant who allegedly is not informed of his appellate rights at sentencing has no reasonable means to learn of them within a year 11 This silence is in marked contrast to the Syville defendants, who disclosed the exact circumstances under which they learned that no notice of appeal had ever been filed, and outlined their actions in response to that news. See People v. Syville, 15 N.Y.3d at 394-95, 396-97. -26- and thirty days thereafter. But this Court has noted that it would only be “the rare case” that Syville relief would be granted, since “most defendants are in a position to discover” the failure to file a notice of appeal “within the statutory grace period.” People v. Syville, 15 N.Y.3d at 400, fn 2. Defendant has done nothing here to distinguish his circumstances from those of other defendants who claim that their plea attorneys rendered ineffective assistance in connection with their appellate rights. More generally, defendant has not shown that he exercised due diligence with respect to his appellate rights even after the one-year grace period expired. Defendant was arrested on February 27, 2010 for driving while intoxicated. That arrest resulted in the appointment of new defense counsel and further contact with the criminal justice system. Even then, though, defendant still did not assert his appellate rights in this case in any way. On May 4, 2011, defendant pled guilty to Operating a Motor Vehicle While Impaired in exchange for a $300 fine, a 90-day suspension of his driver’s license, and mandatory attendance at a drunk driving program. Defendant did not appeal that conviction, thus demonstrating that he does not simply file an appeal as a matter of course whenever one is available. On or about November 3, 2012, defendant filed a motion to set aside the judgment of conviction in this case pursuant to CPL 440.10. At that time, defendant’s new appellate counsel must have known that no notice of appeal was ever filed; nonetheless, defendant still did not file a petition for a writ of error coram nobis until December 20, 2013, more than one year -27- after the CPL 440 motion was filed.12 All told, defendant failed to raise any issue about the notice of appeal for more than six years after his time to file such a notice had expired, and defendant has never offered any explanation about why he waited so long to seek coram nobis relief even after he was represented by counsel. As the Appellate Division found, defendant’s failure to appeal for six years – by any measure a long delay – cannot be attributed to any ineffectiveness on the part of plea counsel. In short, the Appellate Division properly rejected defendant’s coram nobis petition. See People v. Llibre, 2014 Slip Op 73663(U); People v. Llibre, 125 A.D.3d at 423. The minutes of the plea proceeding establish that defendant was informed of his appellate rights in the course of waiving his right to appeal, that he knowingly, intelligently and voluntarily waived his right to appeal, and that he did so precisely because he had no wish to appeal his conviction. And defendant completely failed to show that he could not reasonably have learned of his appellate rights within a year after his time to appeal had expired. Thus, the Appellate Division correctly rejected “defendant’s argument that his failure to appeal was the product of ineffective assistance of counsel.” Id. 12 Similarly, the defendant in Andrews obtained appellate counsel but did not immediately seek coram nobis relief, and the Court rejected his petition in part because “Andrews [did not] attempt to explain why he waited more than two years to seek coram nobis relief after he obtained an attorney to represent him on collateral review.” People v. Andrews, 23 N.Y.3d at 616. -28- B. Even if defendant had credibly established that he was not informed of his appellate rights, consequently did not request that a notice of appeal be filed, would have appealed if informed, and could not have discovered his appellate rights within the one-year grace period, his claim that this Court should expand the holding of Syville to award coram nobis relief under such circumstances would be without merit. Indeed, that claim reveals a fundamental misunderstanding of the core holding and purpose of Syville. Of course, a defendant is entitled to the effective assistance of counsel at trial and on appeal. See, e.g., Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000); Evitts v. Lucey, 469 U.S. 387, 392-94, 396 (1985); People v. Bachert, 69 N.Y.2d 593, 596 (1987). Furthermore, while the federal Constitution does not require states to provide criminal defendants the right to appeal, if the state does afford defendants that right, appellate procedures must comport with the demands of the Due Process Clause of the Fourteenth Amendment. See Evitts v. Lucey, 469 U.S. at 393, 400; People v. West, 100 N.Y.2d 23, 28 (2003). Thus, a state may not “extinguish” the right to appeal solely “because another right of the appellant - the right to effective assistance of counsel - has been violated.” Evitts v. Lucey, 469 U.S. at 400. In particular, a defendant’s right to the “assistance of appellate counsel in perfecting an appeal . . . extends to assistance in serving and filing a notice of appeal.” People v. O’Bryan, 26 N.Y.2d 95, 96 (1970). In that regard, although not -29- constitutionally mandated, all four Appellate Division Departments require trial counsel to advise the defendant of his right to appeal, the relevant time limitations and the procedures for taking an appeal and obtaining poor person relief. Counsel is further obliged to ascertain whether the defendant wishes to appeal, and, if so, to serve and file the necessary notice of appeal. 22 N.Y.C.R.R. §§ 606.5(b), 671.3(a), (b), 821.2(a), 1022.11(a); see also People v. West, 100 N.Y.2d at 26. When the defendant directs counsel to file a notice of appeal, but counsel fails to file a valid notice, counsel has acted ineffectively. See, e.g., Roe v. Flores-Ortega, 528 U.S. at 477. “This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice,” and counsel’s failure to file “cannot be considered a strategic decision,” but rather must be viewed as the neglect of a “purely ministerial task.” Id. Counsel’s ineffectiveness is thereby established without the defendant having to make a showing that he has meritorious appellate arguments. See id. at 484, 486; Rodriquez v. United States, 395 U.S. 327, 330 (1969). Rather, since counsel’s failure to file a requested notice “deprived [the defendant] of the appellate proceeding altogether,” a defendant need only “demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” Roe v. Flores-Ortega, 528 U.S. at 483-84. In People v. Syville, 15 N.Y.3d at 400, this Court adopted the central holding of Flores-Ortega, ruling that where a defendant timely asked his attorney to file a notice of appeal, but counsel failed to do so, and defendant -30- could not have timely discovered the omission, a coram nobis petition could be brought because “no other procedural recourse” existed “to alleviate [the] Constitutional wrong.”13 Under the New York Criminal Procedure Law, a written notice of appeal must be filed within 30 days after imposition of the sentence, and a motion for an extension of time within which to file a notice of appeal must be filed “not more than one year” “after the time for taking such an appeal has expired.” CPL 460.10(a), 460.30(1). The statute spells out that a defendant is permitted to file a late notice of appeal if the delay was due to either the improper conduct of defense counsel or the “inability of the defendant and his attorney to have communicated” because of defendant’s incarceration “and through no lack of due diligence or fault of the attorney or defendant.” CPL 460.30(1). Thus, the Legislature specifically contemplated the circumstance in which a defendant failed to file a timely notice of appeal because of his counsel’s ineffectiveness, and nevertheless imposed a one year deadline to move 13 Defendant asserts that, “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 (Defendant’s Brief at 17), but in fact that goes beyond the requirements of both constitutions. The Supreme Court in Flores-Ortega expressly noted that counsel has a constitutionally imposed duty to consult with the defendant about an appeal only when either there is reason for counsel to believe that “a rational defendant would want to appeal” or the defendant “reasonably demonstrated to counsel that he was interested in appealing.” Roe v. Flores-Ortega, 529 U.S. at 480. The Supreme Court further observed that “a highly relevant factor in this inquiry” is whether the conviction was by guilty plea, “both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings.” Id. -31- for an extension of time. The one-year time limit imposed by CPL 460.30 is “unequivocal.” People v. Corso, 40 N.Y.2d 578, 581 (1976). In Corso, the Court of Appeals recognized that “a failure to advise the defendant of his right to appeal may, of course, be deemed ‘improper conduct’” under CPL 460.30(1)(a). The Court then concluded that in such circumstances a defendant is required, under that statute, to move to for an extension of time to file a notice of appeal within one year after the notice should have been filed. Id. Corso continues to govern cases in which a defendant claims ineffective assistance based solely on counsel’s omission to advise about the right to appeal, but exceptions to the one-year time limit have been judicially established in other circumstances. In People v. Johnson, 69 N.Y.2d 339, 341 (1987), this Court ruled that the passage of time did not bar an appeal where, upon learning of his right to appeal, the defendant “made several timely and diligent pro se attempts to obtain review of the judgment” but “the actions of this State prevented defendant from ever obtaining the review of the conviction to which he was entitled.” Id.14 Next, in People v. Thomas, 47 N.Y.2d 37 (1979), the People were estopped from asserting the time bar where defense counsel did not file a notice of appeal despite the defendant’s request 14 The defendant in Johnson was convicted of murder in the state of Mississippi, and the New York assault conviction was used to enhance his sentence to death. The Johnson Court found that, since the records of defendant’s New York trial had been lost, “the only available remedy at this point is vacatur of the conviction and dismissal of the indictment. People v. Johnson, 69 N.Y.2d at 342. -32- that he do so, and the defendant subsequently sent appeal-related documents which were disregarded by the District Attorney’s Office. The Thomas Court recognized that the defendant had “manifest[ed] his desire to appeal,” but his counsel and the prosecutor had “frustrated the good faith exercise” of his appellate rights. People v. Thomas, 47 N.Y.2d at 43-44. Finally, in Syville, the defendant affirmed that he had asked his attorney to file a notice of appeal, but counsel never did so, and defense counsel filed an affirmation confirming that the notice had been requested, but never filed. Id. at 395, 396. Because the defendant could reasonably rely on counsel to file a requested notice, he had every reason to believe that an appeal was underway and no reason to seek an extension of time or any other relief within the one year statutory time period. The Syville Court held that in those circumstances a defendant may seek a writ of error coram nobis on the ground that his attorney was ineffective for failing to file a requested notice of appeal. To succeed, however, a defendant must show both that his attorney “failed to comply with a timely request for the filing of a notice of appeal,” and that the “omission could not reasonably have been discovered within the one-year period.” People v. Syville, 15 N.Y.3d at 399. The Court cautioned that “it will be the rare case where this exception must be utilized.” Id. at 400, fn 2. Since Syville, this Court has reinforced the principle that it is only in the “rare” case that coram nobis relief will be granted on the ground that a defense attorney was ineffective for failing to file a notice of appeal. The Court in People v. Andrews, 23 N.Y.3d at 614, observed that “strict enforcement of CPL 460.30 is permissible in -33- most cases” since “[o]nly defendants who could not reasonably have [ ] discovered the omission” may avail themselves of Syville relief and “the majority of defendants are in a position to discover the failure to file a notice of appeal within the one-year grace period.” Id (internal quotation marks omitted). In Andrews, the defendant waived his right to appeal orally and in writing. The Andrews court denied the defendant’s request for Syville relief, distinguishing between the Syville defendants – who “offered specific factual allegations that supported their claims of ineffective assistance of counsel” and the defendant in Andrews – who “made only perfunctory claims that he asked his lawyer to file a timely notice of appeal” which were rebutted by defense counsel herself, who confirmed that she and her client had discussed an appeal, after which the defendant decided to plead guilty and end his case. Id. The Court found that defense counsel’s statements “were consistent with Andrews’ execution of a written waiver of his right to appeal in the presence of the judge who presided at the plea proceeding, which presumptively demonstrated a desire not to seek appellate review.” Id. In this case, defendant himself admitted that he wanted for his criminal case to “be over” (Defendant’s Affidavit: A54), which only strengthens the presumption that his waiver of appeal showed that he did not wish to take an appeal. This Court has also clarified that a defendant moving for an enlargement of time to perfect an appeal must “take some minimal initiative to assure himself adequate representation on appeal.” People v. Perez, 23 N.Y.3d at 100. In Perez, the -34- Court reviewed whether it was proper for the Appellate Division to dismiss the defendant’s appeal sixteen years after the notice of appeal was filed. The Court held that the dismissal was proper, noting that the defendant’s lawyer “was undoubtedly ineffective in failing to perfect the appeal that he was hired to pursue” but finding that the lengthy delay “cannot be attributed solely” to counsel’s ineffectiveness. Id. Taken together, Syville and related cases stand for the proposition that coram nobis relief is appropriate to allow a defendant to take a belated direct appeal only where the defendant either was misled into believing that the appeal would go forward without any further action on his part or actually attempted to appeal but was frustrated by improper conduct of a public servant or his counsel. It makes sense that this Court would make Syville relief available only in such narrow circumstances, as the CPL is absolutely clear about when a motion for an extension of time to file a notice of appeal must be filed. Were this Court to expand the holding of Syville far enough to cover this case, the exceptions to CPL 460.30(1) would swallow up the rule. This Court was careful to emphasize that the defendants in Syville, Johnson, Thomas, and Corso all made timely, good faith efforts to exercise their appellate rights. Here, by contrast, defendant never asked for an appeal, had no reason to believe that any appeal was moving forward, and never made any effort to discover the status of his appeal or to advance an appeal himself. Furthermore, as this Court suggested in Perez, if the parameters for Syville relief were broadened, defendants could obtain relief to belatedly capitalize on -35- changes in the controlling law. In Perez, two of the defendants ignored their pending appeals “until after they were adjudicated predicate felons – and then sought counsel to challenge the long-ago convictions.” People v. Perez, 23 N.Y.3d at 101. The Perez Court held, “Appellate courts are not required to accommodate such belated changes of strategy by entertaining stale appeals.” Id. In short, the holding of Perez is completely at odds with defendant’s core argument here. Finally, it bears noting that, if this Court were to expand Syville relief to allow Peque claims to the degree and under the conditions that defendant argues it should, the potential pool of Peque claimants seeking coram nobis relief on those grounds is likely to be enormous. On average, over 46,000 guilty pleas were entered in New York state every year between 2006 and 2013,15 and based on the percentage of non- citizen inmates incarcerated in state correctional facilities, about 3500 non-citizens entered guilty pleas every year during that time frame.16 Like the defendant here, those defendants, no matter how satisfied they may have been with their plea bargains 15 State of New York, Annual Reports of the Chief Administrator of the Courts, 2006-2012, available at http://nycourts.gov/reports/annual/index.shtml. See 29th Report, Year 2006 at 12 (48,046 guilty pleas); 30th Report, Year 2007 at 23 (48,154 guilty pleas); 31st Report, Year 2008 at 20 (47,337 guilty pleas); 32nd Report, Year 2009 at 18 (47,656 guilty pleas); 33rd Report, Year 2010 at 17 (45,612 guilty pleas); 34th Report, Year 2011 at 23 (44,624 guilty pleas); 35th Report, Year 2012 at 23 (43,165 guilty pleas); and 36th Report, Year 2013 at 24 (43,584 guilty pleas). 16 Between 2006 and 2012, foreign-born inmates made up 10% of the statewide prison population, and approximately 76% of that group were non-citizens. 18% were non- citizens. The Foreign-Born Under Custody Population and the Institutional Removal Program at 3-4 (2012), available at http://www.doccs.ny.gov/Research/Reports/2013/ForeignBorn_IRP_Report_2012.pdf. -36- at the time, would have every incentive to seek belated windfall reversals on Peque grounds now that the impracticalities of long-delayed prosecution would likely lead to outright dismissals of the charges. In short, this Court should reject defendant’s invitation to expand the holding of Syville to award coram nobis relief to defendants who show that they were not informed of the appellate process, consequently did not request that a notice of appeal be filed, would have appealed if informed, and could not have discovered their appellate rights within the one-year grace period. CPL 460.30(1) expressly allows for the circumstance where a defendant failed to file a notice of appeal due to counsel’s ineffectiveness, and nevertheless imposes a strict one year deadline to move for an extension of time to file a notice of appeal. CPL 460.30(1). Syville and related cases hold that coram nobis relief is appropriate to allow a defendant to take a belated direct appeal only in the rare instance where the defendant was improperly frustrated in his attempt to bring a timely appeal or was misled into believing that the appeal would go forward without any further action on his part and therefore had no occasion to exercise diligence with respect to prosecution of that appeal. Where a defendant’s claim is simply that his attorney omitted to inform him of his right to appeal, the one-year time limit established by the Legislature and recognized by the Corso Court applies. * * * * -37- In sum, defendant is not entitled to coram nobis relief. The Appellate Division squarely rejected defendant’s claims that he credibly averred that he was not informed about the appellate process, and there is abundant record evidence to support its decision, which accordingly is beyond this Court’s review powers. In any event, as shown, the record reveals that defendant’s claims are unworthy of belief. Defendant’s claim that coram nobis relief should be expanded to include defendants who can credibly show that they were not informed of their appellate rights is meritless and, in any event, does not apply here, since defendant has not made such a showing. -38- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: HOPE KORENSTEIN Assistant District Attorney PATRICK J. HYNES HOPE KORENSTEIN Assistant District Attorneys Of Counsel August 4, 2015 -39- PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 9940, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2013. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.