People v. Howard Grubstein


AT 9 & 10 order dated December 10, 2012, reversing 440 court’s grant of CPL §440.10 motion to vacate a guilty plea as unknowing and involuntary. Decision below: 37 Misc.3d 142(A), 966 NYS2d 348. Read, J., granted leave July 26, 2013.

ISSUE PRESENTED: Whether procedural bar of CPL §440.10(2)(c) (with sufficient facts appearing on the record, failure to raise issue on appeal) should have operated to bar 440.10 attack on quickie guilty plea taken at arraignment by unrepresented defendant. (Assigned counsel: Richard A. Herzfeld, 104 West 40th Street, 20th Floor, NYC 10018.)

Issue before the Court: CPL 440.10(2)(c).  The defendant pleaded guilty in 2008 in Town Court to a misdemeanor DWI charge.  He was unrepresented by counsel, was not advised of his right to appeal, and took no appeal.  Town Court subsequently granted a CPL 440.10 motion on the ground that defendant’s waiver of the right to counsel was not knowing or voluntary.  The Appellate Term reversed on the ground that, under CPL 440.10(2)(c), a 440 motion must be denied if sufficient facts appear on the record to have raised the issue on direct appeal and the defendant “unjustifiab[ly]” failed to do so.


Held: The Court of Appeals reversed and sent the case back to the Appellate Term for further proceedings.  Defendant was not barred by (2)(c) from raising the claim.  The defendant’s failure to raise the issue on appeal was not “unjustifiable.”  Judge Smith observed: “A defendant who has wrongly been deprived of a lawyer can hardly be blamed for failing to follow customary legal procedures.”


CAL Observes: Once again, Judge Smith observes that overly fussy compliance with procedural bars carries “an obvious risk of unfairness.”  Although the decision was technically one of statutory construction of the word “unjustifiably,” Judge Smith made the fairness issue paramount in his reasoning.  The interpretation of (2)(c) will undoubtedly help some defendants down the line in overcoming this procedural bar.