Issue before the Court: Is coram nobis relief available, under the State Constitution, to cure defense counsel’s failure to make a leave application to the Court of Appeals? NO.

 

Factual Background: In November 2015, the Appellate Division, Fourth Department affirmed Jakim Grimes’s conviction. As later admitted by assigned counsel, the lawyer told Mr. Grimes that he would ask the Court of Appeals for leave to continue the appeal in that court. Counsel, however, never filed the leave application and later admitted that the case was closed by mistake. When Mr. Grimes later contacted the lawyer to find out what had happened, the lawyer discovered his error.  By that time, however, not only had the 30-day deadline for a leave application passed, C.P.L. § 460.10,  but counsel had also just missed being within the one-year grace period under C.P.L. § 460.30 to seek permission to file a late leave application. So counsel tried filing a coram nobis motion in the Appellate Division arguing that the defendant had been denied his constitutional rights. The Appellate Division denied the motion but a judge granted permission to appeal the coram nobis denial.

 

Held: In a 5-2 decision, the Court held that coram nobis relief was unavailable because defendants have no constitutional right to legal representation on the criminal leave application, 32 N.Y.3d at 319. “[I]n the absence of a violation of a constitutional right, coram nobis does not lie.” 32 N.Y.3d at 304. 

 

This holding was an extension of a prior decision in People v. Kruger, 23 N.Y.3d 605 (2014), where the Court came to the same legal conclusion as a matter of federal constitutional law. 

 

In affirming, the Grimes majority distinguished People v. Syville, 15 N.Y.3d 391 (2010), where a coram nobis motion was permitted to cure a lawyer’s mistake in not filing a timely notice of appeal to the Appellate Division. Individuals in New York State have an automatic right to appeal their criminal convictions to the “first tier” of appellate review – generally, the Appellate Division or the Appellate Term. For such as-of-right appeals, there is a constitutional right to counsel. 32 N.Y.3d at 311, citing Douglas v. California, 372 U.S. 353 (1963).  In contrast, second-tier appeals to the Court of Appeals are available only by permission and there is no constitutional right to counsel on a second-tier appeal. By extension, there can be no claim of ineffective assistance of counsel on a second-tier appeal.

 

CAL Observes: In the majority opinion, Chief Judge DiFiore emphasized that Court of Appeals’ review is not geared towards determining whether there has been “a correct adjudication of guilt,” but rather whether the case involves legal principles of major significance. 32 N.Y.3d at 313. Moreover, to pick out cases that meet that criteria, it’s not really necessary to have a lawyer prepare the leave application. The Court gets the record from the Appellate Division along with the Appellate Division opinion and the previously-filed briefs. These materials, supplemented perhaps by a pro se litigant’s own submission, give the Court an adequate basis for its decision to grant or deny further review. 32 N.Y.3d at 312-13, quoting Ross v. Moffitt, 417 U.S. 600, 615 (1974). The Chief Judge didn’t address the problem that Mr. Grimes did not know that his lawyer had not filed a leave application and so the Court never reviewed the record from the first-tier appeal. 

Judge Wilson, in dissent, stressed that the Rules of the Court of Appeals require lawyers to file a leave applications in criminal appeals, if requested by the client. 32 N.Y.3d  at 321. Indeed, a criminal defendant has a right to have his or her lawyer file a leave application to the Court of Appeals – that is not discretionary. 32 N.Y.3d at 325. Moreover, Judge Wilson took issue with the majority’s position that Court of Appeals judges “do not need the parties’ lawyers to assist us in determining when to grant leave” and he reviewed the many challenges of the criminal leave application process. 32 N.Y.3d at 323. Judge Wilson concluded,

Even if our Court is concerned more with “matters of public import” than “errors in individual cases,” . . . the assistance of counsel is essential not only to insure the rights of the individual, but for the protection and well-being of society was well. . . . It is also just plain weird to say that we require appointed counsel to prepare [leave applications] but refuse to hold counsel to minimal standards of professional conduct, leaving defendants (and this Court) to suffer the consequences.

 

32 N.Y.3d at 336.