AD2 order dated March 5, 2014, reversing denial of CPL §440.10 motion and remanding for a hearing. Decision below: 115 AD3d 684, 981 NYS2d 750. Rivera, J., granted leave to People on August 6, 2014. Argued November 16, 2015.

ISSUE PRESENTED: For Padilla retroactivity purposes, did defendant’s conviction not become final until the date by which he would have been permitted to file a late notice of appeal (i.e., one year and 30 days from date of sentence)?

Background:  In this Padilla case, the Second Department overruled the 440 motion court which had refused to grant relief because the defendant’s conviction had become final before Padilla was decided.  The Second Department reversed the denial and found that the defendant’s conviction did not become final until one year and 30 days after his sentence–the statutory period during which he could have applied for a discretionary extension of his time to file a late notice of appeal pursuant to C.P.L. 460.30.

 

Issue: When does a defendant’s conviction become final for purposes of applying a new rule of federal constitutional criminal procedure if the defendant does not take a direct appeal to the Appellate Division.  In calculating finality, should a defendant get the benefit of C.P.L. 460.30 which provides a year and 30 days from the date of sentence for a defendant to seek permission to file a late notice of appeal.

 

Held: In light of the uncertainty in the finality of judgments that would result in the Court adopted the defendant’s  proposed definition of finality, the Court rejected that definition.  Where a defendant does not take a timely direct appeal from the judgment and does not move for leave to file a late notice of appeal pursuant to C.P.L. 460.30, the judgment becomes final 30 days after sentencing on the last day the defendant has to file a notice to appeal.  When a defendant takes a direct appeal, judgment becomes final when the defendant’s applications for discretionary review from the higher appellate courts have been denied, or the time for seeking such discretionary appellate review has expired.

 

 

CAL observes: The Court relied in part on the Second Circuit’s reasoning in Bethea v. Girdich, 293 F.3d 577 (2d Cir. 2002) which held that, for purposes of AEDPA’s one-year limitations period, motions to extend the time to appeal do no “re-start” the AEDPA clock. But the Varenga majority’s concern with the “uncertainty that would result in the finality of judgments” is overblown.  As Justice Rivera observed in her dissent, AEDPA reflects federal habeas concerns for comity and finality not presented by the state court litigation at issue here.  This case implicated a limited class of defendants seeking to take advantage of Padilla’s new rule.  C.P.L. 460.30 has a defined 1 year term and “finality is no more certain under the majority’s analysis.”