Issue: Whether the defendant’s coram nobis petition should have been granted because appellate counsel had been ineffective for failing to brief a Catu (4 N.Y.3d 242) plea-withdrawal issue.

Held: "On the present record," defendant-appellant failed to show that "there was no strategic or other legitimate basis" for counsel’s failure. In particular, defendant did not show that the absence of the Catu issue was not due to defendant’s unwillingness to take the risk of plea withdrawal during the pendency of the original appeal. Thus, the Court affirmed the Appellate Division’s order.

The Court added a caveat, however: "We note however that where a defendant in a coram nobis points to a clear error on the face of the County Court record, there are avenues to more fully explore potentially meritorious claims (see, e.g. People v. D’Alessandro, 13 N.Y.3d 216, 220-221 [2009]; People v. Bachert, 69 N.Y.2d 593, 600 [1987]). If a new coram nobis petition is filed, the Appellate Division should consider whether those avenues should be followed."

Cal Observes:

There are a number of undercurrents here that are apparent to only appellate mavens: (1) First of all, the Court’s main holding is undoubtedly correct. If a defendant has a potential plea withdrawal issue on appeal, no appellate lawyer worth his or her salt would raise such an issue without running by the client the risks of plea withdrawal and getting the client to expressly sign off on the risk. Lassalle’s coram papers apparently did not rule out that he had been alerted to the risk at the time of the original appeal and had declined to take it. (2) Secondly, the Court’s citations to D’Alessandro and Bachert become clear only after looking at the jump cites. The D’Alessandro cite is for the proposition that coram nobis, being still uncodified notwithstanding Bachert’s admonition 25 years ago, is amenable to a successive petition, there being no statutory bar. Thus, Lassalle can bring another coram petition with added allegations. The Bachert cite is for the proposition that, upon a renewed coram, the "Appellate Division even has the flexibility, should the need arise, to refer factual disputes for hearings to the nisi prius court or perhaps to judicial hearing officers." Bachert, 69 N.Y.2d at 600. The Bachert Court also suggested that the Appellate Divisions adopt rules to provide for such hearings. Id. It is unclear whether the Appellate Divisions have ever made such a referral, or have adopted rules pursuant to Bachert’s suggestion. Perhaps the Lassalle Court is providing a gentle nudge to the Appellate Divisions. (3) Finally, although not applicable to the Lassalle case, there seems to be a wide misunderstanding as to when a Catu issue can be raised on direct appeal. Any appeal can be brought only on the existing record, and the existing record must suffice to support any plea withdrawal claim. To be sufficient to support a Catu claim, not only must the plea minutes demonstrate that PRS was not part of the sentence promise, but the sentencing minutes must show that the judge actually pronounced PRS at that time; otherwise, the bare record does not reveal any impropriety in the plea proceedings. In the Lassalle case, the Court’s own "Case Summary" reveals that the record shows that the sentencing court pronounced PRS. The same is true in the seminal case of People v. Louree, 8 N.Y.3d 541, 544 (2007). In the Catu case, the record was clear because the claim was raised in a plea withdrawal motion, see 4 N.Y.3d at 245. Many non-Court-of-Appeals cases and writings seem to assume that a Catu issue can be raised on the direct appeal even if the sentencing record contains no pronouncement of PRS; logically, that is not the case, and appellate counsel could not be ineffective for failing to raise the issue under those circumstances.