This opinion is uncorrected and subject to revision before
publication in the New York Reports.
The People &c.,
The People &c.,
Case No. 153:
Abigail Everett, for appellant.
Alan Gadlin, for respondent.
Case No. 154:
Benjamin C. Fishman, for appellant.
Alan Gadlin, for respondent.
CPL 460.30 permits the Appellate Division to excuse a
defendant's failure to file a timely notice of appeal from a
criminal conviction if the application is made within one year of
the date the notice was due.
In these cases, we are asked
whether the coram nobis procedure is available to afford further
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relief to defendants who did not move within the one-year grace
period because they were unaware during that year that their
attorneys had not complied with their requests to file notices of
People v Nathaniel Syville
Nathaniel Syville was tried three times for charges
arising from a January 2001 drug transaction that culminated in a
shooting incident involving multiple victims.
The first trial
ended in a mistrial when the jury deadlocked on all charges.
the second trial, Syville was convicted of criminal possession of
a weapon in the second degree, acquitted of attempted murder
relating to one victim and the jury hung on the remaining
attempted murder and assault counts, resulting in a second
mistrial as to those offenses.
Syville was sentenced on the
weapon possession conviction in November 2004 but execution of
his sentence was stayed pending resolution of the remaining
The third trial again culminated in a mistrial in
January 2006 and, the following month, the unresolved charges
were dismissed when the People announced that they would not seek
a fourth trial.
Syville's attorney filed a notice of appeal
relating to the November 2004 conviction in March 2006.
In July 2006, Syville filed a pro se motion for poor
person status and other relief, at which time he discovered that
the notice of appeal filed by his trial attorney had not been
timely under CPL 460.10(a).
That statute required that a notice
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of appeal be filed within 30 days of the November 2004 sentencing
CPL 460.30 permits a defendant to seek leave to file
a late notice of appeal provided that the application is made
within one year of the date the notice should have been filed.
In this case, however, the one-year grace period had already
elapsed by the time Syville discovered his attorney's error.
Once he learned of the untimely filing, Syville pursued several
applications for relief under CPL 460.30 but those requests were
denied by the Appellate Division.
Syville subsequently applied for a writ of error coram
nobis in the Appellate Division, again seeking permission to file
a late notice of appeal.
The petition included affidavits from
Syville and his former attorney stating that, upon being
convicted of the weapon possession offense, Syville had requested
that his attorney file a notice of appeal on his behalf.
the record reflects that Syville's counsel announced at the
sentencing proceeding that he intended to file such a notice.
his affidavit, the attorney explained that he did not file a
notice of appeal within 30 days of the November 2004 judgment of
conviction under the mistaken belief that it would have been
premature to file the notice of appeal while some of the charges
Furthermore, he had erroneously believed that,
when the sentencing court stayed the sentence, the 30-day period
for filing a notice of appeal was also stayed.
that he had reasonably relied on his counsel's advice concerning
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the proper time for filing a notice of appeal and the failure to
timely pursue an appeal was entirely a product of lawyer error.
In the coram nobis application, Syville argued that he
should not be penalized for his attorney's mistake because he had
not -- and could not reasonably have -- discovered the error
within the one-year grace period, particularly since he continued
to be represented by the same lawyer throughout the relevant time
Contending that his attorney's lapse amounted to
unconstitutional ineffective assistance of counsel, defendant
claimed that it would offend the Due Process Clause to apply the
one-year statutory time limit to preclude his pursuit of an
The People consented to coram nobis relief.
these unusual circumstances, the People reasoned that Syville
should be allowed to perfect his direct appeal in that his
failure either to meet the 30-day filing deadline or request
relief within the CPL 460.30(1) one-year grace period stemmed
solely from defense counsel's legal error.
People's concession, the Appellate Division denied Syville's
application for coram nobis relief.
A judge of this Court
granted Syville leave to appeal (13 NY3d 911 ).
People v Tony Council
After a jury convicted him of conspiracy in the second
degree and two counts of criminal sale of a controlled substance
in the first degree, Tony Council was sentenced in February 2007,
thereby triggering the 30-day period for filing a notice of
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Council's trial attorney did not file a notice of appeal
within 30 days of the judgment of conviction.
More than two years later, when Council retained a
different lawyer to represent him on appeal, he filed a coram
nobis application in the Appellate Division seeking leave to file
a late notice of appeal and a reasonable extension of time to
perfect the appeal.
The application was supported by affidavits
from Council, his mother, his trial attorney and his appellate
Those affidavits revealed that, at the time of his
conviction, Council had asked his trial attorney to file a notice
In fact, Council maintained that his attorney
demanded and received payment of $2,000 prior to filing the
His trial attorney, who was not retained to perfect the
appeal, averred that he had neglected to file the notice of
appeal as a result of "law office failure."
Council remained unrepresented for the next two years.
He asserted that he was distracted by health problems and that he
had relied on his mother to raise the funds necessary to hire a
lawyer to perfect the appeal.
During this time, Council claimed
that he periodically asked his mother to expedite her efforts out
of concern that the time to file an appellate brief might expire.
But it appears from the record that Council never contacted the
The record does not reveal whether this sum represented an
unpaid balance relating to the trial representation or a fee
associated solely with preparation and filing of the notice of
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Appellate Division to ascertain the deadline for perfecting his
appeal nor pursued poor person relief or assignment of counsel in
In the course of interviewing a prospective appellate
attorney in January 2009, Council's mother discovered that trial
counsel had not filed a notice of appeal.
At this point in time,
both the 30-day period for filing a timely notice of appeal and
the CPL 460.30 one-year grace period had long since expired.
Eventually, Council hired an appellate lawyer, who filed an
application for coram nobis relief in April 2009.
In response to
that application and the affidavits detailed above, the People
submitted a two-paragraph affirmation asserting that, given the
trial attorney's acknowledgment that defendant had timely
requested that he file a notice of appeal and that his failure to
do so was the result of law office failure, the People did not
oppose Council's request for relief.
Despite the People's lack
of opposition, the Appellate Division denied Council coram nobis
relief in a brief memorandum opinion, citing CPL 460.30.
Council's subsequent request for rehearing and reconsideration
was denied, a Judge of this Court granted Council leave to appeal
(13 NY3d 859 ).
The primary issue on appeal is whether a defendant who
discovers after the expiration of the CPL 460.30 grace period
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that a notice of appeal was not timely filed due to ineffective
assistance of counsel has recourse through a coram nobis
Recognizing that the Due Process Clause of the
Federal Constitution requires that some avenue for relief be
provided in such a circumstance, we conclude that coram nobis is
the appropriate procedural course in New York.
We begin with the recognition that there is no federal
constitutional mandate that requires states to grant criminal
defendants an appeal as of right for review of trial errors
(Evitts v Lucey, 469 US 387, 393 ).
Thus, "the right to
appeal is a statutory right that must be affirmatively exercised
and timely asserted" (People v West, 100 NY2d 23, 26 , cert
denied 540 US 1019 ).
But that being said, where a state
has granted a criminal defendant a direct appeal as of right (as
does New York), it must "make that appeal more than a meaningless
ritual" by affording a right to counsel on appeal (Evitts, at 394
[internal quotation marks and citation omitted]).
that "[a] first appeal as of right . . . is not adjudicated in
accord with due process of law if the appellant does not have the
effective assistance of an attorney" (id., at 396).
When defense counsel disregards a client's timely
request to file a notice of appeal, the attorney "acts in a
manner that is professionally unreasonable" (Roe v Flores-Ortega,
528 US 470, 477 ).
In such a situation, a defendant
justifiably relies on the lawyer to carry out the purely
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ministerial task of taking the first step to preserve the right
to appellate review (id.).
When counsel's omission causes a
defendant to lose the right to perfect or obtain merits
consideration of an appeal, the deficient performance amounts to
ineffective assistance of counsel in violation of the Due Process
Clause(see Evitts, 469 US 387; see also Roe, 528 US 470).
Due Process Clause prohibits a defendant from being denied the
right to appeal as a consequence of the violation of another
constitutional right -- the right to the effective assistance of
counsel on direct appeal (see Evitts, 469 US at 400).
establish a constitutional violation in this context, a defendant
need not identify potentially meritorious issues that would be
raised on appeal; the defendant need only demonstrate that, as a
result of counsel's deficient performance, appellate rights were
extinguished (Roe, at 484-485).
Based on this precedent, we conclude that a defendant
must be provided with an opportunity to assert a claim that the
right to appeal has been lost due solely to the
unconstitutionally deficient performance of counsel in failing to
file a timely notice of appeal.
The question then becomes what
procedural vehicle is available in New York for a defendant to
raise this distinct type of ineffective assistance of counsel
To resolve this inquiry, we must review the historical
use of the writ of error coram nobis, the impact of CPL 460.30 on
the common-law writ and our precedent interpreting that statute.
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Even before the United States Supreme Court articulated
a constitutional right to effective assistance of counsel on
direct appeal, this Court had recognized that a defendant whose
right to appeal is lost through his attorney's deficient
performance should have a remedy.
Before CPL 460.30 was enacted
in 1970, such a claim could be pursued by the filing of an
application for a writ of error coram nobis (see People v
Callaway, 24 NY2d 127 ; People v Montgomery, 24 NY2d 130
This type of application, known as a Montgomery claim,
prompted a hearing in the trial court to determine whether the
defendant had been reasonably induced to allow the time to take
an appeal to expire by reason of an attorney's misrepresentation
that defendant's appellate rights would be protected.
defendant who prevailed at the hearing was
pro tunc -- a procedure that restarted the 30-day period for
filing a notice of appeal -- thereby permitting an appeal on the
The Montgomery claim procedure was largely superceded
when the Legislature adopted the modern Criminal Procedure Law in
As we recognized in People v Corso (40 NY2d 578 ),
most of the grounds for coram nobis relief previously authorized
under the common law were codified in CPL 440.10, a provision
that does not encompass Montgomery relief.
"CPL 440.10 is
designed and delineates the grounds for vacating a judgment of
conviction while, on a Montgomery claim, the defendant
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essentially seeks an extension of time for taking an appeal" (id.
In limited circumstances, a modified form of Montgomery
relief was authorized in CPL 460.30, which allows a defendant
whose notice of appeal was not timely filed to apply to the
Appellate Division to extend the time for pursuing an appeal.
Such relief may be granted if "the failure to so file or make
application in timely fashion resulted from (a) improper conduct
of a public servant or improper conduct, death or disability of
the defendant's attorney, or (b) inability of the defendant and
his attorney to have communicated, in person or by mail,
concerning whether an appeal should be taken" (CPL 460.30).
The motion "must be made with due diligence after the time for
the taking of such appeal has expired, and in any case not more
than one year thereafter" (CPL 460.30 [emphasis added]).
460.30 eliminated the need for resentencing as a basis to extend
the time for timely filing a notice of appeal, which is
consistent with a provision elsewhere in the CPL that precludes a
party from challenging the underlying conviction in an appeal
from a resentencing (see CPL 450.30, ).
In Corso, we noted that CPL 460.30(1) contains a
significant restriction as it imposes a one-year limit for the
filing of a motion for leave to file a late notice of appeal.
Characterizing the one-year period as jurisdictional in People v
Thomas (47 NY2d 37 ), we have previously identified only
one exception to the general bar on seeking relief after the
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We have authorized an
appeal despite noncompliance with the CPL 460.30 time limit when,
through action or unjustifiable inaction by a prosecutor,
defendant's diligent and good faith efforts to exercise his
appellate rights within the one-year time frame were thwarted
(id., at 43; People v Johnson, 69 NY2d 339 ).
Today, consistent with the Due Process mandate, we
recognize the need for a second exception.
Where an attorney has
failed to comply with a timely request for the filing of a notice
of appeal and the defendant alleges that the omission could not
reasonably have been discovered within the one-year period, the
time limit imposed in CPL 460.30 should not categorically bar an
appellate court from considering that defendant's application to
pursue an untimely appeal.2
Turning to the procedure to be used
in invoking the exception, we conclude that the common-law writ
of error coram nobis affords the appropriate avenue for relief.
Since the adoption of the CPL, we have acknowledged that the writ
continues to be available to alleviate a constitutional wrong
when a defendant has no other procedural recourse (People v
Bachert, 69 NY2d 593 ).
We expect that it will be the rare case where this
exception must be utilized. As defendants here acknowledge, in
most cases strict enforcement of the CPL 460.30 time limit is
constitutionally permissible because attorneys usually accede to
their clients' requests to file notices of appeal and, when they
fail to do so, most defendants are in a position to discover the
omission within the statutory grace period.
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"In its modern context a motion for a writ
presupposes a violation of the defendant's
constitutional rights not appearing on the
record, no negligence which could be
attributed to the defendant for failure to
have brought the alleged error to the
attention of the court at the time of the
trial, and, further, that the current
proceeding is not a substitute for a new
trial, appeal or other statutory remedy" (id.
at 598 [internal quotation marks and
Here, each defendant claims that his right to appeal
was lost because his attorney failed to comply with the timely
request to file a notice of appeal.
These alleged constitutional
errors do not appear on the trial record and defendants could not
have brought these errors to the attention of the trial courts
since the omissions did not occur until after the judgments of
Furthermore, the coram nobis proceedings seek only
the right to pursue an appeal -- they are not a substitute for a
new trial, appeal or other statutory remedy.
As to the latter,
the only statutory recourse appears in CPL 460.30 -- and that
remedy is unavailable because the one-year time limit has
Accordingly, a defendant seeking relief under the
As we observed in Corso, CPL 440.10 provides no statutory
avenue for relief for this category of ineffective assistance of
counsel claims because it allows defendants to challenge the
validity of judgments of conviction -- not circumstances that
occur post-conviction. If the relief a defendant is seeking is a
direct appeal, that relief is not within the cadre of remedies a
trial-level court may grant under CPL 440.10. That is not to say
that CPL 440.10 is of no utility in this situation because a
defendant might secure significant underlying relief in a CPL
440.10 motion. Although a CPL 440.10 motion cannot result in
permission to file a late notice of appeal, a defendant can
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exception we recognize today may use a coram nobis application
filed in the Appellate Division.
We now turn to the specific claims before us.
parties are in agreement that coram nobis provides the
appropriate procedural avenue for relief for this category of
ineffective assistance of counsel claims.
But the People urge us
to further hold that, consistent with the requirements of CPL
460.30, defendants who wish to invoke the exception should be
required to show that they acted with due diligence to protect
their appellate rights, along with demonstrating that they
reasonably failed to discover within the one-year grace period
that a notice of appeal had not been timely filed.4
secure the same relief as could be achieved through a successful
appeal if the challenge to the conviction fits within one of the
permissible claims in CPL 440.10. A defendant is therefore
barred from raising a claim in a CPL 440.10 proceeding that could
have been raised on direct appeal only if there was an
"unjustifiable failure" to raise the issue on direct appeal (see
People v Cuadrado, 9 NY3d 362 ). If a defendant was
prevented from pursuing his direct appeal solely due to his
attorney's noncompliance with a request to file a notice of
appeal, the failure to raise the issue in question on direct
appeal would be justifiable (see e.g. People v Lard, 45 AD3d 1331
[4th Dept 2007]).
The People also urge that, in the absence of a due
diligence requirement, a defendant would be free to turn his
attorney's error into an undue appellate advantage by postponing
the coram nobis application and subsequent perfection of the
appeal, thereby detrimentally affecting the People's ability to
retry the charges in the event of a reversal. For example, if a
defendant learned of his attorney's error one month after the CPL
460.30 grace period had elapsed but then waited five years to
seek coram nobis relief, the People maintain that the Appellate
Division should have the discretion to deny the application if
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the People argue that a defendant should be required to establish
that his attorney's omission was the cause of the delay in
pursuing relief -- in other words, that the delay was not a
consequence of the defendant's unjustifiable failure to timely
pursue an appeal.
In these cases, the People contend that
Syville has established due diligence as a matter of law and is
entitled to coram nobis relief but that Council's application
should be remitted to the Appellate Division because resolution
of that due diligence inquiry would present a mixed question of
law and fact.
Despite the importance of this issue, the People's due
diligence argument is not properly before this Court for review.
At the Appellate Division, the People neither asserted that such
a standard should be employed nor opposed either defendant's
request for coram nobis relief.
And the People never suggested
that the loss of appellate rights in these cases was attributable
to anything other than deficient performance by trial counsel.
As a consequence, we have no occasion to address whether a
defendant in this circumstance may be denied relief based on a
lack of due diligence in pursuing appellate rights.
In these appeals, the Appellate Division appears to
have based its decisions denying relief exclusively on CPL
460.30, suggesting the court believed that the one-year statutory
limit barred defendants from pursuing their appeals.
defendant failed to proffer a reasonable excuse for the delay.
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now reject that conclusion, and the People failed to preserve for
review any other basis for denying relief, both defendants' coram
nobis applications should be granted.
We therefore remit each
case to the Appellate Division so that defendants may pursue
their direct appeals on the merits.
Accordingly, the orders of the Appellate Division
should be reversed, defendants' coram nobis applications should
be granted and the cases remitted to the Appellate Division for
further proceedings in accordance with this opinion.
In Each Case: Order reversed, defendant's coram nobis application
granted and case remitted to the Appellate Division, First
Department, for further proceedings in accordance with the
opinion herein. Opinion by Judge Graffeo. Chief Judge Lippman
and Judges Ciparick, Read, Smith, Pigott and Jones concur.
Decided October 14, 2010
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