The People v. Raymond Brun
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 229 SSM 50
The People &c.,
Respondent,
v.
Raymond Brun,
Appellant.
Submitted by Norman Trabulus, for appellant.
Submitted by Andrea M. DiGregorio, for respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed,
defendant's application for a writ of error coram nobis granted,
the Appellate Division's January 2009 order of modification (58
AD3d 862 [2d Dept 2009]) vacated, and the matter remitted to the
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SSM No. 50
Appellate Division for a de novo determination of the People's
appeal.
Pursuant to the Rules of the Second Department, on a
People's appeal to that court, if a defendant was represented by
assigned counsel at the trial court, "such assignment shall
remain in effect and counsel shall continue to represent the
defendant as the respondent on the appeal until entry of the
order determining the appeal and until counsel shall have
performed any additional applicable duties imposed upon him by
these rules, or until counsel shall have been otherwise relieved
of his assignment" (22 NYCRR 671.3 [f]).
Here, although he
informed defendant of the People's appeal, defendant's assigned
trial counsel failed to represent defendant on that appeal.
The
Appellate Division, apparently unaware that defendant had been
represented by assigned trial counsel, determined the People's
appeal, noting no appearances by defendant (58 AD3d 862).
Defendant thereafter applied for a writ of error coram
nobis, alleging that he had been deprived counsel on the People's
appeal in violation of Rule 671.3 (f).
The Appellate Division
denied the writ, stating that defendant "failed to establish that
he was denied the effective assistance of appellate counsel" (64
AD3d 611, 612 [2d Dept 2009]).
Because defendant's trial counsel failed to comply with
the terms of 22 NYCRR 671.3 (f), defendant was deprived of
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appellate counsel to which he was entitled.
Accordingly, the
Appellate Division should have granted defendant's application
for a writ of error coram nobis.
Although a writ of error coram
nobis generally raises the claim that defendant received
ineffective assistance of appellate counsel, the writ is also a
proper vehicle for addressing the complete deprivation of
appellate counsel that occurred here.
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On review of submissions pursuant to section 500.11 of the Rules,
order reversed, defendant's coram nobis application granted, the
Appellate Division's January 2009 order of modification vacated
and the case remitted to the Appellate Division, Second
Department, for a de novo determination of the appeal to that
court, in a memorandum. Chief Judge Lippman and Judges Ciparick,
Graffeo, Read, Smith, Pigott and Jones concur.
Decided October 26, 2010
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