People v. Luciano Rosario, People v. Marcos Llibre


AD1 order dated March 13, 2014, denying application for a writ of error coram nobis. Graffeo, J., granted leave September 4, 2014. Argued November 16, 2015.
ISSUE PRESENTED: Whether a writ of error coram nobis will lie when a defendant does not appeal because trial counsel failed to inform him about the appellate process and defendant did not know to ask. This issue was left open in People v. Andrews, 23 NY3d 605. (Assigned counsel: Robin Nichinsky & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)


Whether a defendant is entitled to coram nobis relief based on trial counsel’s failure to speak with his or her client about the right to appeal, where the attorney accordingly neither files a notice of appeal nor disregards the client’s request to file such a notice.  



Unclear.  In both cases, the Court determined, the evidence that the lawyers did not advise their clients about their appellate rights was unconvincing.  In neither case did the attorney submit an affidavit (although they were asked to), so the only such evidence was the defendant’s “self-serving” affidavit.  In both cases, moreover, the right to appeal was mentioned during the proceedings, albeit as part of an invalid appeal waiver colloquy.  And the plea deals were seemingly favorable at the time - - even if it turned out they had unforeseen immigration consequences.  Query: would the result be different (a) had the lawyer submitted an affidavit owning up to not discussing the right to appeal with their clients, or (b) had there been no (invalid) appeal waiver on the record, (c) had the plea-bargain-outcome been less favorable to the defendant.  At least as to (a), the answer is probably yes.  


CAL Observes:

Judge Pigott starts off his majority “Analysis” with the sentence: “The procedure for taking an appeal from a judgment of conviction or sentence in a criminal matter is relatively straightforward.”  Indeed, compared to solving all the problems in the Middle East, it is “relatively” straightforward.  The reality is that New York’s criminal justice system fails 99.8% of all criminal defendants with respect to assuring that their appellate rights are protected.  At bottom, with decisions like this one, the Court must now own this failure.


In no other area in New York’s criminal justice system is there a bigger disconnect between what trial lawyers are supposed to do (by court rule, ethical standard, or bar association standards), and what they actually do, than in fulfilling their obligations with respect to their clients’ appellate rights.  As Chief Judge Lippman’s partial dissent points out, the lawyers are required to have an appeal discussion in 100% of cases.  Yet 99.8% of the time (just a guess), no conversation happens.  The reasons  are legion but include: (a) most trial lawyers wrongly believing that if their client plead guilty there is no right to appeal, or if the client got a negotiated sentence there is no point in appealing, or (b) that a waiver of the right to appeal - - even if validly taken - -  actually waives the right to appeal (spoiler alert! it doesn’t).  Indeed, many defendants are told on the record that their plea bargain waives the right to appeal when, in fact, even a valid waiver does not eliminate the intermediate appellate court’s subject matter jurisdiction; all the appeal waiver does is forfeit the right to raise certain discreet issues on appeal.  A plethora of other issues survives the waiver.  This doesn’t include the fact that most waivers are not validly taken and would not be enforced.  Trial attorneys generally do not understand this so do not convey as much to their clients.   (A separate area of severe dysfunction - - that New York’s system leaves the defendant all alone when it comes to securing appointed appellate counsel if they can’t afford one - - we’ll leave to another day.)


As stated above, the New York Court of Appeals did not create this dysfunction, but it owns it now.