The People, Respondent,v.Marcos Llibre, Appellant.BriefN.Y.November 16, 2015To be argued by ROBIN NICHINSKY (15 minutes requested) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - APL-2014-00303 MARCOS LLIBRE, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, NY 10005 rnichinsky@cfal.org (212) 577-2523 ROBIN NICHINSKY Of Counsel August 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 1 MARCOS LLIBRE’S CORAM NOBIS PETITION SHOULD HAVE BEEN GRANTED UNDER PEOPLE v. SYVILLE, 15 N.Y.3d 391 (2010), BECAUSE COUNSEL FAILED TO INFORM HIM OF HIS RIGHT TO APPEAL OR FILE A NOTICE TO APPEAL ON HIS BEHALF, AND HE WOULD HAVE TIMELY APPEALED BUT FOR THE INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMENDS. VI, XIV; N.Y. CONST. ART. I, § 6. . . . . . . . . . . 1 A. Appellant Should Not Be Denied the Right to Appeal Due Solely to Ineffective Assistance of Counsel.. . . 2 B. Appellant’s Sufficient Allegations. . . . . . . . 10 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . 19 ADDENDUM. . . . . . . . . . . . . . . . . . . . . . . . . A.1 i TABLE OF AUTHORITIES FEDERAL CASES Lucy v. Evitts, 486 U.S. 387 (1985).. . . . . . . . . . . . 8 Padilla v. Kentucky, 559 U.S. 356 (2010). . . . . . . . . . 8 United States v. Singh, 305 F. Supp.2d 109 (D.D.C. 2004). . 14 Roe v. Flores-Ortega, 528 U.S. 470 (2000).. . . . 1, 3, 4, 5, 6, 7, 8 United States v. Couto, 311 F.3d 179 (2d Cir. 2002).. . . . 14 STATE CASES People v. Andrews, 23 N.Y.3d 605 (2014).. . 9, 11, 16, 17, 18 People v. Corso, 40 N.Y.2d 578 (1976).. . . . . . . . 2, 4, 7 People v. Llibre,__A.D.3d__, 2014 WL 2457818(1st Dep’t 2014)..10 People v. McDonald 1 N.Y.2d 109 (2003). . . . . . . . . 14, 16 People v. McKenzie, 4 A.D.3d 437 (2d Dep’t 2004). . . . . . 16 People v. Peque, 22 N.Y.3d 168 (2013), cert. denied, 135 S. Ct. 90 (2014).. . . . . . . . . . . . . . . . . . . . . . . 3, 14 People v. Perez, 23 N.Y.3d 89 (2013). . . . . . . . . . . . 7 People v. Sanders, 25 N.Y.3d 337 (2015).. . . . . . . . 13, 17 People v. Syville, 15 N.Y.3d 391 (2010).. . . . . . . . passim People v. Thomas, 47 N.Y.2d 37 (1979).. . . . . . . . . . . 3 People v. Ventura, 17 N.Y.3d 675 (2011).. . . . . . . . . . 10 People v. West, 100 N.Y.2d 23, cert. denied, 540 U.S. 1019 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 FEDERAL STATUTES U.S. Const. Amends. VI, XIV.. . . . . . . . . . . . . . . . 1 STATE STATUTES N.Y. Const. Art. I, § 6.. . . . . . . . . . . . . . . . . . 1 C.P.L. § 440.10.. . . . . . . . . . . . . 3, 9, 12, 13, 17, 18 C.P.L. § 460.30.. . . . . . . . . . . . . . . . . . . 2, 7, 8 ii COURT OF APPEALS STATE OF NEW YORK ----------------------------------------: THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- APL-2014-00303 MARCOS LLIBRE, : Defendant-Appellant. ----------------------------------------: PRELIMINARY STATEMENT This brief is submitted in reply to Respondent’s Brief [“R”], which was received on August 5, 2015. ARGUMENT MARCOS LLIBRE’S CORAM NOBIS PETITION SHOULD HAVE BEEN GRANTED UNDER PEOPLE v. SYVILLE, 15 N.Y.3d 391 (2010), BECAUSE COUNSEL FAILED TO INFORM HIM OF HIS RIGHT TO APPEAL OR FILE A NOTICE TO APPEAL ON HIS BEHALF, AND HE WOULD HAVE TIMELY APPEALED BUT FOR THE INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMENDS. VI, XIV; N.Y. CONST. ART. I, § 6. Appellant argued in his main brief that among counsel’s duties under the Sixth Amendment is the duty to inform the client of their right to appeal. Such “duty to inform” was the underlying assumption in Roe v. Flores- Ortega, 528 U.S. 470 (2000), and is consistent with this Court’s holdings in People v. Syville, 15 N.Y.3d 391 (2010), and its other post-Flores-Ortega decisions. Respondent now refutes that effective assistance of 1 counsel includes that obligation, contending that, “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” (RB 37; quote marks added). Respondent further argues that even if this Court were to apply Syville to appellant’s case, the Court cannot consider the sufficiency of appellant’s coram nobis allegations because the Appellate Division purportedly made a “credibility determination” that is beyond the scope of this Court’s review and, in any event, appellant’s allegations are incredible. None of respondent’s contentions have merit. A. Appellant Should Not Be Denied the Right to Appeal Due Solely to Ineffective Assistance of Counsel Respondent attacks the very idea that a defendant in this State must be told he has a right to appeal, and urges this Court to reject this constitutional principle. Respondent alleges that when the issue is “simply” whether a defendant’s “attorney omitted to inform him of his right to appeal,” the one year time limit of C.P.L. § 460.30 and this Court’s decision in People v. Corso, 40 N.Y.2d 578 (1976), “applies” (RB 37). That is wrong. This Court should reaffirm its holding in Syville that no one should be denied the right to appeal due solely to ineffective assistance of counsel, and recognize that this principle 2 includes situations where a defendant was never properly informed of his right to appeal in the first place. According to respondent, Syville coram nobis relief should be limited to instances where defendants lose their right to appeal due either to prosecutorial tactics, as in People v. Thomas, 47 N.Y.2d 37 (1979), or where the defendant knew about the right to appeal but counsel failed to heed defendant’s direction to file a notice to appeal, as in Syville (RB 35, 37). Under this proposition, defendants most in need of effective counsel – those so unfamiliar with the criminal process, or uneducated, that they do not even know they have a right to appeal (as often happens with immigrants, who may not even speak English) – would be denied the right to appeal at all with no other procedural recourse. Neither Syville nor Roe v. Flores-Ortega, 528 U.S. 470 (2000), stand for that proposition.1 To the contrary, Flores-Ortega tacitly recognizes the very rule appellant sets forth. 1 Respondent argues that appellant should be denied both coram nobis relief and any relief for any Peque-related claim under C.P.L. § 440.10 because, as respondent alleges, Peque relief should only be available on direct appeal (RB 25). See People v. Peque, 22 N.Y.3d 168 (2013), cert. denied, 135 S. Ct. 90 (2014). Whether a Peque claim can be raised under C.P.L. § 440.10 was not addressed in Peque itself and is not before this Court in this case. However, the position respondent advocates would deny appellant the ability to litigate his ineffectiveness claim both in a coram nobis petition or in a C.P.L. § 440.10 motion. According to respondent and contrary to this Court’s holding in Syville, a defendant like appellant who is denied an appeal due solely to ineffective assistance of counsel would then truly, and improperly, be denied all recourse to relief. Syville, 15 N.Y.3d at 400 (coram nobis can be used to “alleviate [the] constitutional wrong” of the deprivation of the right to appeal due to counsel’s ineffectiveness when there is “no other procedural recourse”). 3 Respondent acknowledges that the holding in Flores- Ortega was adopted by this Court in Syville (RB 30-31). However, in characterizing Flores-Ortega’s “central holding” as that counsel has acted ineffectively when she fails to file a notice of appeal when asked (RB 30), respondent ignores that the defendant there had already been informed of his right to appeal (RB 31 n.13). Implicit in Flores-Ortega’s recognition of a limited duty to consult with the defendant concerning the right to appeal is that defense counsel has fulfilled his or her more fundamental obligation to inform the defendant of this right. Where this has not been done there can be no basis to assume the defendant has made an informed decision to forego his appellate rights. Respondent’s overly restrictive misinterpretation of Flores-Ortega and reliance upon pre-Flores-Ortega cases such as People v. Corso, 40 N.Y.2d 578 (1976), are incorrect. The assumption underlying Flores-Ortega is that defense counsel is obligated to inform his client of the right to appeal and failure to do so is inherently deficient. In Flores-Ortega, the trial court at sentence notified the defendant that, “You may file an appeal within 60 days....” 528 U.S. at 474. The defendant alleged that counsel promised but failed to file a notice to appeal on his behalf, so the failure to file was without his consent. Id. In addressing whether there is a 4 federal constitutional duty for counsel to consult with a client about his appeal, of which he had already been informed, the Supreme Court declined to impose a per se rule. Instead, it imposed a duty on counsel to consult about the right to appeal only when “there is a reason to think either: (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Flores-Ortega, 528 U.S. at 480. Of course, such a duty to consult would be meaningless if defense counsel had not informed his client of the right to appeal in the first place, as in this case. Here, appellant, a first-time offender, averred that there was a complete failure by anyone - court or counsel – to properly inform, much less consult, with him about his right to appeal. Under these circumstances, there can no assumption that the defendant made an intelligent decision to forego an appeal, nor can any inference be drawn from his failure to do so, as respondent seeks to do. Appellant would not have “reasonably demonstrated to counsel that he was interested in appealing,” 528 U.S. at 480, if counsel never informed him of the right to appeal in the first place. That the focus of Flores-Ortega is on a situation where the defendant was already informed of the right to 5 appeal is evident from the examples given by the Supreme Court of instances where consultation concerning that right would not be required. In every example given by the Court, counsel did not need to advise of the right to appeal because the court had already done so: For example, suppose that a defendant consults with counsel; counsel advises the defendant that a guilty plea probably will lead to a 2 year sentence; the defendant expresses satisfaction and pleads guilty; the court sentences the defendant to 2 years’ imprisonment as expected and informs the defendant of his appeal rights; the defendant does not express any interest in appealing, and counsel concludes that there are no nonfrivolous grounds for appeal. Under these circumstances, it would be difficult to say that counsel is “professionally unreasonable,”...as a constitutional matter, in not consulting with such a defendant regarding an appeal. Or, for example, suppose a sentencing court’s instructions to a defendant about his appeal rights are so clear and informative as to substitute for counsel’s duty to consult. In some cases, counsel might then reasonably decide that he need not repeat that information. 528 U.S. at 479-80 (emphasis added). Where as here neither the Court nor counsel has informed the defendant of his right to appeal, it follows that counsel has failed to carry out his minimal obligations as a lawyer. As our State law and Appellate Division court rules clearly set forth, counsel, at a minimum, must properly inform his or her client of the 6 right to appeal. Here, where it is asserted, without evidence to the contrary,2 that neither counsel nor the court properly informed appellant of his right to appeal, counsel’s representation was patently deficient. Under this Court’s analysis in Syville, appellant should be entitled to a writ of error coram nobis if he can demonstrate that deficiency, and that he would have timely appealed if not for counsel’s ineffectiveness. 15 N.Y.3d at 399-401. As we maintain in our main brief, that standard was more than satisfied in this case. Instead of Flores-Ortega and Syville, respondent’s brief relies upon C.P.L. § 460.30, enacted in 1971, and the 1976 decision in People v. Corso, 40 N.Y.2d 578 (1976) and other pre-2000 cases (RB 31-32).3 But regardless of § 460.30, Flores-Ortega and this Court’s subsequent decisions provide that it is unconstitutional to not properly inform a defendant of his right to appeal and, in most instances, consult with him about that right. See Flores-Ortega, 528 U.S. at 481 (Court indicates its expectation that “courts... will find, in the vast majority of cases, that counsel had a duty to consult with 2 Respondent’s unsupported claims are addressed at length, infra, at pp. 10-19. 3 Respondent’s comparison to People v. Perez, 23 N.Y.3d 89 (2013), is inapposite (RB 34-36). In that case the defendants filed notices of appeal but waited over a decade before filing their appeals. This Court found these lengthy delays were not solely attributable to counsels’ ineffec- tiveness, and relied on its decision in West, 100 N.Y.2d 23, to find the defendants had been afforded due process. 23 N.Y.3d at 99-100. That is not the case here. 7 the defendant about an appeal”). This Court in People v. West, 100 N.Y.2d 23, cert. denied, 540 U.S. 1019 (2003), three years after Flores-Ortega, noted that the defendant in that case had been “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” 100 N.Y.2d at 29 (emphasis added). Post-Flores-Ortega, this Court has thus recognized that to the extent C.P.L. § 460.30 conflicts with a defendant’s constitutional rights, § 460.30 cannot prevail. As this Court also emphasized in Syville, when it quoted from Lucy v. Evitts, 486 U.S. 387, 400 (1985), due process prohibits a defendant from “being denied the right to appeal as a consequence of another constitutional right – the right to effective assistance of counsel on direct appeal.” Syville, 15 N.Y.3d at 397-98. Respondent’s brief seeks to ignore the plain meaning of these cases. Respondent’s contention that the right to appeal may be forfeited due solely to ineffective assistance of counsel should be firmly rejected as contrary to this Court’s decision in Syville and the Federal and State Constitutions. Failing on the merits, respondent also resorts to a groundless “floodgates” argument that is equally wrong (RB 36). As the Supreme Court noted in Padilla v. Kentucky, 559 U.S. 356, 371 (2010), courts are well-equipped to 8 determine and reject specious claims and determine those that have substantial merit. Here, as in Padilla, this Court should not heed respondent’s dire predictions to deny defendants their fundamental constitutional rights. Indeed, it is clear that these predictions are grossly exaggerated. As in Syville, before defendants would be eligible for coram nobis relief they would be required to overcome several significant hurdles. First, they would need to make sufficient allegations that they were never informed of the right to appeal – a right that is often noted on the record in many cases. They would also need to allege that had they been so informed, they would have appealed. Then, as in Syville, a defendant must show that he had no other procedural recourse (as, for example, defendant Patel did in Andrews) and that the forfeiture of the fundamental right to appeal “could not reasonably have been discovered within the one-year period.” And, as with a § 440.10 motion, if there is a legitimate dispute as to any of the alleged facts after a defendant has made sufficient allegations, a hearing could be ordered to determine the facts. Only after these requirements have been met would a defendant be entitled, not to vacate the conviction, but to have the opportunity to file a late notice of appeal so he can exercise his fundamental right to appeal his conviction – a right he could have had in the first 9 instance but for counsel’s deficient representation. As in Syville, a defendant should reasonably be able to rely on counsel to properly inform and even consult with him about the fundamental right to appeal that every defendant is already entitled to under the laws of this State. See Syville, 15 N.Y.3d at 397; see also People v. Ventura, 17 N.Y.3d 675, 680-81 (2011)(emphasizing the “invariable importance of the fundamental right to an appeal....” in this State). B. Appellant’s Sufficient Allegations In an effort to persuade this Court not to decide the important legal issue upon which leave was granted – that is, whether a defendant may be denied his fundamental right to appeal when he has lost that right due solely to counsel’s failure to inform him of his right to appeal – respondent argues that the Appellate Division made a “credibility determination” that constitutes a mixed question of law and fact that is not reviewable by this Court. That is simply not true. Not a hint of such a determination appears in the coram decision itself, which simply stated, “Writ of error coram nobis denied.” People v. Llibre, __A.D.3d__, 2014 WL 2457818 (1st Dep’t 2014). Unable to rely on anything in the coram decision itself, respondent resorts to speculation bordering on 10 fiction. Respondent argues that the coram court must have “implicitly” (RB 14) reached the “apparent” (RB 18) conclusion that appellant’s case lacked credibility - even though there is absolutely no indication of any such determination in the decision. Respondent seeks to support such speculation with the convoluted argument that the 440 court’s decision, which refers to the coram court’s decision, somehow “explain[s]” (RB 16) what the coram nobis order meant. Building upon this fanciful argument, respondent’s brief constructs its own litany of facts – in essence, rewriting the coram nobis decision, adding all the missing elements that respondent wishes were there but were not (RB 17). Indeed, this coram decision could just as easily have been a purely legal determination that Syville does not apply, as respondent’s brief itself argues (RB 15). The 440 decision is not before this Court, and cannot be relied upon to supply the supposed basis for the coram nobis court’s decision. Moreover, appellant’s allegations here are more than legally sufficient to support his coram nobis petition, in contrast to the insufficient allegations asserted in People v. Andrews, 23 N.Y.3d 605 (2014). For this reason, the summary denial of appellant’s coram nobis petition was error. Respondent’s claims that the record “shows” appellant was aware of his appellate rights, that he had “no wish” to appeal at the time of his plea, and that 11 there was “no impediment” to his filing a notice to appeal within one year, lack support in the record (RB 18). In contrast, appellant’s allegations are largely corroborated by the evidence and/or the notable lack of any contrary evidence. Respondent’s empty attacks are based upon nothing more than speculation, innuendo and inaccuracies. As noted in appellant’s main brief before this Court, and consistent with the averments in appellant’s affidavit that counsel never informed him nor consulted with him about his right to appeal notwithstanding any waiver, the plea and sentence records contain no evidence that appellant was informed of his right to appeal. Even the court endorsements crossed out the line intended to indicate he had been given written notice of the right to appeal. In an affirmation filed in conjunction with appellant’s C.P.L. § 440.10 motion (and attached to his coram petition), counsel could not recall appellant’s case and did not dispute these claims. The fact, as respondent asserts, that there were ten months from arrest to plea (RB 18), is not proof counsel told appellant he had a right to appeal.4 Nothing anywhere, including in counsel’s 4 Respondent fails to note that for at least some of this time defense counsel Berman was abroad and another attorney, Stephen Scott, took over (A. 60). But more importantly, there is no evidence that anything about a right to appeal was discussed during this or any other time, and respondent’s claim otherwise is pure conjecture. 12 trial file, indicates appellant was properly informed of his right to appeal.5 To be sure, there is evidence that appellant received much misinformation that misled him about the right to appeal. At the plea, when the court orally noted the appeal waiver, it did not explain to appellant – a first offender – what waiving the right to appeal actually meant, as the court did in People v. Sanders, 25 N.Y.3d 337 (2015)(court informed experienced defendant that he could not appeal to Appellate Division, Second Department).6 Instead, the court misleadingly told 5 Contrary to respondent’s assertions (RB 9, 21), there is no requirement that appellant ask counsel what his “usual” practice at that time would have been, especially given appellant’s averment that he was not told anything in this specific case. Nothing prevented respondent from contacting counsel to try and obtain that information; however, respondent apparently did not do so. Similarly, respondent cites (RB 21) to a defense exhibit – an 18B voucher – that was part of appellant’s § 440.10 motion but not part of the coram nobis record, and alleges appellant “should not be permitted to ignore the record of his 440 claim while touting its merit here” (RB 21 n.8). Respondent’s claims regarding this voucher, relating to what counsel knew about immigration and how often he spoke with appellant generally, conveniently omit appellant’s § 440.10 explanation that regardless of what counsel knew about immigration, counsel never discussed immigration with him. Also, as with the question of counsel’s “usual practice,” respondent could have but chose not to include this voucher in the coram nobis record below. The belated remarks now relating to this off-the-record information should be disregarded by this Court. Appel- lant’s § 440.10 application for leave to appeal to this Court is currently pending before Judge Rivera. 6 Respondent emphasizes all the trial rights enumerated by the court that appellant was waiving by pleading guilty, but ignores the failure to similarly explain the meaning of a waiver of the right to appeal (RB 18). Instead, respondent goes on to charge, without basis in the record, that there was a pause in the proceedings “while defendant and Berman reviewed the written waiver,” citing to a letter from the stenographer Susan Pearce-Bates (RB 18; SA1; emphasis added). While Pearce-Bates’ letter notes a pause, neither she nor the plea record say anything about any “review.” The record notes only that “defendant is filling out the waiver of appeal,” the apparent reason for the pause (RB 19; emphasis added). The only mention of any “review” is in respondent’s brief (RB 18). 13 appellant that he was “not waiving much anyway” since he had waived the pretrial hearing that the court had granted. This misstatement remained uncorrected by counsel. Similarly uncorrected – and notably ignored in respondent’s brief – was the written waiver, which was clearly misleading. The waiver laid out only four exceptions, not including challenging the involuntariness of the plea itself, and incorrectly told appellant he was waiving “all” other appellate rights (A. 45). Appellant was thus erroneously told that he could not raise on appeal a central issue that in fact he had a legal right to raise: a due process claim that the court incorrectly advised him that he would suffer immigration consequences only if he was not in the country lawfully. In fact, as a result of his plea, he would also suffer those consequences as a lawful permanent resident. The court’s misstatement affirmatively misled him, and in doing so rendered his plea not knowingly, intelligently and voluntarily made.7 Had appellant known this at that time, he would surely have filed a notice to appeal in this 7 Contrary to respondent’s assertion, appellant’s claim is not solely dependent upon this Court’s decision in People v. Peque, 22 N.Y.3d 168 (2013), cert. denied, 135 S. Ct. 90 (2014). It also encompasses a misinformation by the court and counsel claim, not just a failure to inform. See, e.g., United States v. Couto, 311 F.3d 179, 190-91 (2d Cir. 2002); United States v. Singh, 305 F. Supp.2d 109 (D.D.C. 2004); People v. McDonald 1 N.Y.2d 109 (2003). 14 case, as he has averred. Instead, appellant was deprived of this right. Rather than addressing the error on the written waiver form in respondent’s brief, respondent inaccurately asserts that appellant “identifies no false or misleading information provided to him regarding his appellate rights....” (RB 26). Respondent flippantly remarks that since appellant was not incarcerated, he was “free to call his attorney at any time” or even “his probation officer,” to discuss “a potential appeal” (RB 26). Of course, respondent makes no effort to explain how appellant was supposed to know to call anyone about an appeal that he does not know he was entitled to. Indeed, respondent seems to suggest it is a defendant’s burden to learn for himself about his appellate rights. This argument turns the right to appeal on its head. Respondent also speculates that appellant must have taken this plea “likely wish[ing] for the litigation to end quickly and quietly in the hope that he would not draw attention to the immigration authorities” (RB 22). This speculation misses the point: immigration consequences are the very thing the court, and counsel, failed to tell appellant about. Knowledge about these consequences of his plea and that the failure to properly inform him of these consequences was an appealable issue, is exactly what appellant did not know 15 about and the reasons he would have appealed had he been properly informed. Respondent also concludes that this was a “beneficial plea” because drug possession was alleged (RB 23), but does not note any possible defenses, such as, for example, that a suppression hearing, which had been granted (A. 32), might have resulted in suppression of the drugs here because appellant’s arrest was not based upon probable cause. Respondent asserts that appellant faced a “lengthy prison term,” although that seems unlikely given he was a first offender at age 36 (RB 23). The claim that receiving probation minimized appellant’s chances of facing immigration charges is also wrong. Cf. People v. McKenzie, 4 A.D.3d 437, 439 (2d Dep’t 2004)(counsel’s claim that, if the defendant pleaded guilty to a non-jail offense, he would be deportable but “there was a good chance that he would not be deported,” was held to be “incorrect” advice and ineffective assistance under McDonald, 1 N.Y.2d 109 (2003)). In fact, appellant is currently facing removal charges as a direct result of his guilty plea in this case. All of the facts alleged by appellant sufficiently establish, as a matter of law, that he was denied his right to appeal due solely to ineffective assistance of counsel. Unlike in People v. Andrews, 23 N.Y.3d 605, 16 appellant averred that he was not informed of the right to appeal and he would have appealed had he been so informed. Counsel did not come forward stating otherwise (as counsel did in Andrews). Unlike in Sanders, appellant did not have a long criminal record and experience in criminal matters from which to deduce he independently knew about the right to appeal. This was appellant’s first criminal conviction. In a subsequent misdemeanor traffic case, dated May 4, 2011, touted by the prosecutor below and now re-emphasized without documentation in respondent’s brief (RB 27), appellant was actually not informed of the right to appeal in that case either (See May 4, 2011 Transcript in attached Addendum). Also, unlike in Andrews, where no reason was given for the delay in bringing the coram nobis petition even though defendant had known about and asked his counsel to file a notice of appeal, here the reasons for delay have been given. First, as appellant avers, appellant was not told and did not know he had a right to appeal, and his one year and thirty days had long expired – unbeknownst to him – long before he came to undersigned counsel to investigate filing a C.P.L. § 440.10 motion. As undersigned counsel’s affirmation confirms, counsel then investigated and represented appellant on a § 440.10 motion. After the § 440.10 proceedings were well 17 underway,8 counsel focused on the fact that no direct appeal had been filed, informed appellant of that fact, and then filed this coram nobis petition. These assertions, absent from the Andrews coram petition, support the claim here that appellant did not file a coram nobis petition until he was aware that he had lost his right to file a notice of appeal due to trial counsel’s inadequate representation – long after the one-year period has passed, and he then exercised due diligence as best he could. Any further question on this point, which again is not disproved by respondent, could be resolved at a hearing, but does not legally justify summary denial of appellant’s coram nobis petition. Unlike Andrews, and again contrary to respondent’s claims (RB 34), here the presumption created by the waiver of appeal was sufficiently rebutted by appellant’s sufficient allegations – allegations that were absent in Andrews, 23 N.Y.3d 605 – and by the misrepresentations about that waiver that misled appellant to waive his right to appeal based upon misinformation. Despite appellant’s sufficient, corroborated and unrefuted allegations, the Appellate Division summarily 8 By then the § 440.10 had been denied by the trial court, and a discre- tionary § 440.10 appeal had been granted by the Appellate Division. 18 denied appellant’s coram nobis petition. In fact, given that respondent has presented no evidentiary basis for the blanket unsupported assertions otherwise, this coram nobis petition should be granted, and appellant should be granted permission to file a late notice of appeal in this case. * * * For all of the above reasons, as well as those in appellant’s main brief before this Court, the Appellate Division denial of appellant’s petition for a writ of error coram nobis should be reversed, and a notice of appeal in this case be deemed timely filed. In the alternative, at the least, under these circumstances, the case should be remanded for a hearing. CONCLUSION FOR THE REASONS STATED ABOVE AND IN THE PRINCIPAL BRIEF, THE APPELLATE DIVISION'S ORDER DENYING CORAM NOBIS RELIEF TO APPELLANT SHOULD BE REVERSED. Respectfully submitted, ROBERT DEAN CENTER FOR APPELLATE LITIGATION Attorney for Defendant-Appellant ROBIN NICHINSKY Of Counsel August 2015 19 ADDENDUM A.1 1 CR IMINAL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YOR K PART E 2 - x THE PEOPLE OF THE STATE OF NEW YORK, 3 - agai nst- 4 5 MARCOS LL I BR E, 6 Defenda n t . -x 7 10 0 Centre St reet 8 New Yo rk, New Yo rk 100 13 9 May 4 , 2011 10 B E F 0 R E : 1 Docke t No .: 2010N Y015 663 11 THE HONORABL E MATTHEW SCIARRINO, J udge 12 A P P E A R A N C E S : 13 FOR THE PEOPLE: 14 OF FIC E OF CY RUS VANCE JR. , ESQ. Distr ict At torney New York Count y 15 One Hogan Place New York, New Yo rk 10013 16 BY: JACLYN PAOLUCCI, ESQ . 17 Assistan t District Attorney 18 FOR THE DEFEN DANT: 19 JOSEP H GI ARAMITA , ESQ . At torney s fo r Defendant 20 82 15 5th Avenu e Brook lyn, New Yo rk 21 22 23 24 25 Will iam Gra nt - Official Court Reporter 1 2 3 Llibre. PLEA/SENTENCE COURT OFF I CER : Cal ende r number 2, Marcos MR. GI ARAMITA : Joseph Gia ramit a, 8215 4 5th Avenue, Brooklyn, New York. 5 6 THE COURT: On for hear ing a nd trial . MS . PAOLUCCI: The People are ready 7 today, You r Honor. 8 The Peop le offe r 11 92 . 1, with a fi ve 9 hundre d do lla r fi ne, 90-day licens e suspension and 1 0 t he Dr inking Driv ing p rog ram. 11 MR. GIARAMITA: And the other charges 12 were p revi ous ly di smi ssed . I was unaware that the 13 in frac tio n is not subject to 30.30 . 14 15 16 17 18 19 20 THE CO URT : It is not . I have tri ed se vera l way s and i t i s no t s ubject . MR. GIARAM I TA : I understand . THE COURT: Second cal l fo r a jury pa rt. MR . GIARAM I TA : Was t hat the minimum on the fi ne? TH E COU RT: The min imum wo uld be th ree 21 h undred. 22 MR. GIARAMITA : Wo uld you cons ider tha t? 23 We don' t need to go to trial on this case . 24 25 THE COU RT: hundred dol la r fin e . I 'll ma ke an o ffer of a t hree Wil liam Grant - Official Court Reporter 2 1 2 Honor . PLEA/SENTENCE MR. GIARAMITA : Al ri ght. Th a nk y ou , You r That ' s acceptable . T ime to pay , please . 3 TH E COU RT : Sir , i t is my un de rst anding 4 yo u wis h t o p lead guil ty to operating a motor 5 veh ic le while impaired, a traffic in f raction, in 6 vio l ation of s ectio n 11 92 .1, t he so le re main i ng 7 cha r g e in t his c a se; i s tha t co r rect ? 8 9 THE DEF ENDANT : Yes . THE COURT : On the plea o f gu i lty, the 10 sentence of the Court is a conditiona l di s charge , 3 11 wi th a three hu nd red d ollar fin e, p lus a t wo h undre d 12 fi fty -five d ollar surcharge, y ou mu st at ten d and 13 complete the DD P program with the State o f New York 14 and you r licens e wil l b e sus pe nde d for a pe ri od of 15 n i net y days. Th e cas e wil l be a djou rned fo r 16 c ompl i ance and payment in Pa rt DW IC , o n July 8th of 17 201 1 . 18 Please wai t for paperwork . 19 MR. GIARAM IT A : What d oes h e ha v e to do 2 0 21 on that d ate ? THE COURT : He has to come back with 2 2 proo f o f the DDP program and he h as to pa y t h e f ine . 23 24 MR . GI ARAM ITA : He h as to p ay th e fi n e . He ha s bail in this case, Yo ur Honor . Can we 25 exonerate it ? That wil l be h e lpful to h im. Wi lliam Grant - Official Court Repor ter 4 PLEA/SENTENCE 1 THE COURT: Bail will be exonerated. 2 MR. GIARAMITA: He can use that to pay 3 the fine. 4 Thank you. 5 * * * * * 6 7 8 9 William Grant, Official Court Reporter 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 William Grant - Official Court Reporter