Issue Presented: Whether a writ of error coram nobis, alleging ineffective assistance of counsel depriving a defendant of his right to appeal, lies against trial counsel for - - after filing a notice of appeal - - failing to advise his client about his right to appeal or explain how to get appellate counsel assigned, thus resulting in the eventual dismissal of the appeal for failure to prosecute.  (Here, retained counsel filed a notice of appeal on behalf of his intellectually disabled and now-indigent client, but did nothing more - he did not advise his client of his right to poor person relief or to counsel, nor explain how to go about obtaining either, and he did not advise him of the benefits of appealing and consequences of failing to do so.  When the People moved to dismiss for failure to perfect, counsel neglected to take any action although he had been served with their motion and thus must have known the appeal would likely be dismissed.) 

 

Held: By a 5 to 2 vote, there is no right to counsel under the 6th Amendment or the State Constitution, to assist an indigent defendant in preparing a poor person application to get counsel assigned to represent him on appeal. Once a notice of appeal is filed, retained or assigned trial counsel has no constitutional obligation to assist the defendant, and may constitutionally do nothing. In dissent, Judge Rivera pointed out, correctly, that the representation fell below what was required by Appellate Division rules in every department and relevant bar association standards. Counsel was thus ineffective, in the dissent’s view. Judge Wilson joined that opinion and also separately dissented on the ground that, in his view, counsel is required under current United States Supreme Court case law to assist the defendant in this regard.

 

CAL Observes: According to the dissents, the majority decision is poorly-reasoned, mean-spirited, and retrograde. We see no reason to disagree. Although a lawyer who abandons a client this way has committed malpractice, violated Appellate Division rules, and violated every relevant bar association standard – and may be subject to disciplinary action – he has not violated State or Federal right-to-counsel provisions, according to the majority. The defendant thus has no recourse on a writ of error coram nobis to revive his appeal. The tenor of this decision is consistent with the dismissive posture that the Court has historically taken with regard to the right to effective assistance of counsel on a criminal appeal.