People v. Vinod Patel/Churchill Andrews/Kevin Kruger


AD2 order dated July 11, 2012, granting defendant’s writ of error coram nobis seeking to file a late notice of appeal. Decision below: 97 A.D.3d 701, 947 N.Y.S.2d 901. Pigott, J., granted leave to People November 27, 2012.

ISSUE PRESENTED: Whether defendant was entitled to relief under People v. Syville, 15 N.Y.3d 391.

Issues Before the Court: These three cases, each with a different fact pattern, concerned whether People v. Syville (15 NY3d 391) entitled them to a common-law writ of error coram nobis to pursue an untimely appeal on the grounds that their lawyer unjustifiably failed to effectuate their right to appeal.  Patel and Andrews claimed that their trial lawyers failed to advise them about their right to appeal and had ignored their respective requests to file a notice of appeal.  Kruger claimed that his appellate lawyer failed to file a timely criminal leave application to the Court of Appeals despite his request that the lawyer do so, and the lawyer’s promise that he would do so.

CPL 460.30 allows a criminal defendant a one-year grace period within which to seek permission from the intermediate appellate court to file a notice of appeal beyond the 30-day time limit, or to seek permission from the Court of Appeals to file a late criminal leave application (CLA) beyond the 30-day deadline.

In Syville the Court recognized that a criminal defendant should not be deprived of his right to appeal by virtue of ineffective assistance of trial counsel in failing to file a notice of appeal, and that CPL 460.30 should not categorically bar an application to pursue an untimely appeal via common-law writ of error coram nobis.  Thus, the writ  would lie in the “rare case” where “an attorney failed to comply with a timely request for the filing of a notice of appeal and the defendant alleges that the omission could not reasonably have been discovered within [CPL 460.30's] one-year period”(15 N.Y.3d at 399).

In these three cases, the Court limited Syville, but only somewhat.


Held: People v. Patel: Patel could not avail himself of a writ of error coram nobis because he had, in fact, filed a timely 460.30 application, which the Appellate Division had denied. Hence, he did not meet Syville’s requirement that the defendant could not have discovered the failure to file the notice of appeal within 460.30's one-year grace period. All seven judges agreed with this literal reading of Syville.  

People v. Andrews: This defendant lost out solely because his writ, in contrast to the one in Syville, “made only perfunctory claims that he asked his lawyer to file a timely notice of appeal and that it was impossible to discover the omission with reasonable diligence.”  Judge Rivera separately concurred.  She also found the allegations perfunctory and agreed that the writ should be denied on that basis.  She noted, however, that she was “disconcerted” by counsel’s “failure to provide Andrews with written notice, in person or by mail, of his right to appeal,” “in direct contravention of” Second Department rules (and indeed the rule in all four departments).  Trial counsel’s assertion that she “ask[ed] Mr. Andrews if he wished to appeal” did not cut the mustard, as it was “cursory” and “lacking any semblance” of compliance with the Second Department rule.

People v. Kruger: This defendant lost out because an appeal to the Court of Appeals is a matter of discretionary review not covered by the Sixth or Fourteenth Amendments to the federal constitution (as the United States Supreme Court has held).  What about the State constitution?  Too bad.  Kruger did not assert that claim, so it was unpreserved, and so the Court did not decide it.  The Court expressly left the question open for another day.  Judge Rivera dissented on the grounds that it is within the Court’s  discretion to decide what a coram nobis petition covers, and the Court is not limited by the federal constitution.  Counsel’s performance was deficient and the defendant should have the right to file a leave application.


CAL Observes: (1) Although the Court purported to interpret Syville narrowly ... not so much.  Patel and Churchill each involved a discrete set of facts.  As to Kruger: well, the next such claimant might do better by invoking the State constitution; the Court will no doubt decide this question, which it expressly left open, at some point during this century.  (2) Judge Rivera’s dismay, as noted in her Andrews concurrence, about the lackadaisical approach to notifying defendants of their right to appeal, despite a firm departmental rule, was right on the money.  Apparently this practice – or lack thereof, is rife in some counties.  Many trial defense lawyers simply do not appreciate the value of their clients’ right to appeal.  Perhaps they still think, appellate holdings notwithstanding, that a waiver of the right to appeal actually waives the right to appeal; it does not, by the way.  See People v. Callahan (80 N.Y.2d 273).  (3) As is common with appellate decisions generally – no less in the Court of Appeals – some of the more interesting stuff is in the footnotes.  Footnote one: The People sought  to have Andrews’ appeal dismissed because he had been deported.  The Court noted that the involuntary deportation had occurred after a Court of Appeals judge had already granted leave “and despite apparent assurances that removal would not occur while the appeal was pending.”  The Court thus tersely “rejected” the People’s argument.  Lesson?  Don’t dis a judge of the Court of Appeals.  Footnote two: although the Court rejected Patel’s claim, since he had previously availed himself of CPL 460.30, it generously noted that defendant who discovers within the one-year grace period that a notice of appeal was not filed, but who is thwarted from filing a timely 460.30 application, can still seek a writ of error coram nobis.  Footnote three: Kruger filed his coram in the Appellate Division (per Bachert’s literal holding) even though the default was in the Court of Appeals.  The People did not claim that Kruger filed the coram in the wrong place, so the Court expressly decided not to deal with this important procedural question.  Another question  left to be resolved sometime this century.