The People v. Luciano Rosario, The People v. Luciano Rosario

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 191
The People &c.,
Respondent,
v.
Luciano Rosario,
Appellant.
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No. 192
The People &c.,
Respondent,
v.
Marcos Llibre,
Appellant.
Case No. 191:
Robin Nichinsky, for appellant.
David P. Johnson, for respondent.
Case No. 192:
Robin Nichinsky, for appellant.
Hope Korenstein, for respondent.
PIGOTT, J.:
In People v Syville (15 NY3d 391 [2010]), we held that
a defendant who learns, after the expiration of the one-year
grace period provided in CPL 460.30, that a notice of appeal was
not timely filed on his behalf due to the ineffective assistance
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of his counsel may, under very limited circumstances, have
recourse by way of a coram nobis application. Defendants in
these appeals claim they are entitled to such relief. We
disagree, and therefore affirm in both appeals.
People v Rosario
In 2008, Luciano Rosario was arrested and charged with
various misdemeanor counts of stalking and harassment. A
temporary order of protection was issued directing him to stay
away from the complainant. Rosario violated that protection
order and was charged with four counts of criminal contempt in
the second degree.
He appeared with his counsel and was offered a plea to
second-degree harassment and fourth-degree attempted criminal
contempt with definite concurrent sentences, the greatest of
which was 30 days. When Rosario indicated he did not understand
all of the consequences resulting from the plea, the court
declined to accept Rosario's plea and adjourned the matter to a
later date.
Several weeks later, Rosario again appeared with
counsel and accepted the People's offer and pleaded guilty. The
court asked if Rosario waived "formal allocution, prosecution by
information, and waive[d] the right to appeal", to which counsel
responded, "Yes". Rosario was immediately sentenced consistent
with his plea. No notice of appeal was filed.
Nearly four years later, Rosario, through new counsel,
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filed this application for a writ of error coram nobis claiming
that his plea counsel did not speak with him about his right to
appeal. He claimed that had he been so informed, he would have
exercised it. Specifically, he contends that he lost his job and
is now subject to deportation due to his convictions, which he
claimed rested on pleas that were not knowing, intelligent, and
voluntary when made.
In addition to his own affidavit, Rosario submitted an
affirmation from his current counsel who stated that Rosario's
former counsel, speaking through her organization's counsel, had
stated that she had no specific recollection of what transpired
in the case. However, it was her general practice to advise
clients about the right to appeal and to provide them a written
statement to that effect. He argued that coram nobis relief
should be granted due to counsel's failure to advise him of his
appeal rights and that he should be provided an opportunity to
file a notice of appeal.
In opposition, the People argued that Rosario's claim
that his plea counsel did not apprise him of the right to appeal
was unsupported and, in any event, Rosario had no viable issues
to appeal. The People submitted a letter from U.S. Immigration
and Customs Enforcement which revealed that a search of the
Department's records failed to show that Rosario had ever been in
immigration proceedings. Further, the letter states that it did
not appear that Rosario would be subject to deportation based on
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these criminal convictions. Furthermore, the People argued,
Rosario failed to exercise due diligence with respect to any
potential appellate claims.
The Appellate Division denied Rosario's writ of error
coram nobis without opinion. A Judge of this Court granted
Rosario leave to appeal (24 NY3d 964 [2014]).
People v Llibre
In June 2006, Marcos Llibre was indicted on charges of
criminal possession of a controlled substance in the third and
fourth degrees and attempted criminal sale of a controlled
substance in the third degree. In April 2007, Llibre accepted a
plea to fourth-degree criminal possession of a controlled
substance with a promise of five years probation.
At the plea proceeding, the court confirmed with Llibre
that he discussed the case and the decision to plead guilty with
counsel. The court informed Llibre of the rights that he was
giving up by pleading guilty. The court also specifically asked
Llibre whether he understood that he was waiving his right to
appeal, to which Llibre answered in the affirmative. Llibre
executed a written waiver of appeal and was sentenced as promised
in the plea agreement.
In November 2012, some five years after his time to
file a notice of appeal had expired, Llibre petitioned for a writ
of error coram nobis. He alleged that counsel at his plea
hearing was constitutionally ineffective because he had failed to
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advise him of his right to appeal, to ascertain if he wished to
appeal, or to file a notice of appeal on his behalf. The
Appellate Division denied Llibre's writ of error coram nobis (125
AD3d 422 [1st Dept 2015]). A Judge of this Court granted Llibre
leave to appeal (24 NY3d 1121 [2014]).
Analysis
The procedure for taking an appeal from a judgment of
conviction or sentence in a criminal matter is relatively
straightforward. A defendant who wishes to take an appeal must
generally do so within 30 days after imposition of sentence (see
CPL 460.10 [1] [a]). CPL 460.30 allows an appellate court to
grant an extension of time to file a notice of appeal if
defendant makes a motion, with due diligence, after the 30 days
has expired but in no event more than one year thereafter. "The
one-year grace period is strictly enforced 'since the time limits
within which appeals must be taken are jurisdictional in nature
and courts lack inherent power to modify or extend them'" (People
v Andrews, 23 NY3d 605, 611 [2014] [citation omitted]).
In People v Syville (15 NY3d 391), this Court
considered whether defendants may be afforded an opportunity to
file a notice of appeal, even beyond the one year and 30 days
permitted under the CPL. In Syville, the defendants had made
timely requests to their attorneys to file a notice of appeal on
their behalf but their attorneys failed to comply. We held that
when an attorney has failed to comply with a timely request for
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the filing of a notice of appeal and the defendant demonstrates
that the omission could not reasonably have been discovered
within the one-year period, the time limit imposed in CPL 460.30
should not categorically bar an appellate court from considering
a coram nobis application to pursue an untimely appeal. Thus,
coram nobis relief is not just another stop on a continuum of
opportunities for a defendant to seek appellate relief. Rather,
it is extraordinary relief only to be provided in "rare cases"
"when a right to appeal was extinguished 'due solely to the
unconstitutionally deficient performance of counsel'" (Andrews,
23 NY3d at 611 citing People v Syville, 15 NY3d 391, 398).
We recently considered the Syville rule in People v
Andrews (23 NY3d 605), where the defendant pleaded guilty to
selling narcotics and executed a written waiver of his right to
appeal in conjunction with an agreement that he enter a drug
treatment program. He was sentenced to time served and released
from custody that day. Andrews did not file a notice of appeal.
He later moved, beyond the one year and 30 day time
period afforded under the CPL, for coram nobis relief under
Syville, claiming that his lawyer had been ineffective for not
filing a notice of appeal. We held that Andrews failed to
establish that his attorney had been ineffective, finding that
defendant made only "perfunctory claims" that he had asked his
lawyer to file a timely notice of appeal and had not shown that
it was impossible to discover the omission with reasonable
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diligence (id. at 615). Andrew's former attorney stated that she
had discussions regarding the possibility of an appeal with
Andrews (as she did with every client) and he had decided not to
pursue that route because he wanted to accept a sentence of time
served and end his case (id.). We noted that those statements
were consistent with Andrews' execution of a written waiver of
his right to appeal before the court, which "presumptively
demonstrated a desire not to seek appellate review" (id. citing
People v Parris, 4 NY3d 41, 50 [2004]).
The cases before us now do not resemble Syville or
Andrews. Significantly, neither defendant claims that he
requested that his attorney file a notice of appeal and that his
attorney failed to comply with that request. Rather, they claim
that counsel did not advise them of the right to appeal and had
defendants known about their right to appeal, they would have
requested one. However, in both appeals, the only evidence
proffered in support of the contention that defendants were not
apprised of their appellate rights are self-serving affidavits.
The records as a whole reveal that defendants knew about their
right to appeal. Thus, to grant defendants relief here would be
to broaden the Syville rule to apply to any case where a notice
of appeal had not been filed within one year and 30 days of
conviction. Such a rule would abrogate CPL 460.30. Simply put,
defendants here failed to show that their attorneys were
unconstitutionally ineffective and therefore they are not
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entitled to the relief they seek.
In Rosario, at the first court proceeding, plea counsel
stated that she had discussed the "collateral consequences of a
conviction" including "possible immigration and other
consequences" with defendant, and that he wanted to dispose of
the matter. The court adjourned the matter, which permitted
Rosario additional time to consider the plea and the rights he
would be forfeiting and to discuss those matters with his
attorney. Some three weeks later, the court specifically asked
plea counsel if Rosario waived his right to appeal, to which she
answered affirmatively. Further, plea counsel stated that while
she could not recall the specifics of Rosario's case -
understandably as it was some three years later - it was her
routine to inform defendants of their appellate rights.
The record in Llibre is even more conclusive. Llibre
acknowledged to the court at the plea proceeding that he
understood that he was waiving his right to appeal. He also
executed a written waiver before the court. Both the oral and
written waivers in these cases are contrary to defendants' claims
that they were unaware of their right to appeal.
Nor did defendants make any showing that they took
steps toward discovering the omission or explain why years passed
before they sought coram nobis relief. In order to obtain
exceptional relief beyond the time permitted under CPL 460.30,
defendant must show that he exercised due diligence. The records
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in both appeals support the conclusion that defendant had no
intention of appealing, as both waited years before seeking
relief. Their desire to quickly dispose of the matters at the
time of their pleas is consistent with their highly favorable
pleas; Rosario was sentenced to time served and released that
same day and Llibre was sentenced to probation.
Under these circumstances, defendants failed to meet
their burden on their coram nobis applications. Accordingly, the
orders of the Appellate Division should be affirmed.
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People v Luciano Rosario
People v Marcos Llibre
No. 191 & 192
LIPPMAN, Chief Judge (concurring in People v Llibre; dissenting
in People v Rosario):
I agree with the majority that in People v Llibre the
record conclusively demonstrates that defendant Llibre was
advised of his right to appeal and waived that right both orally
and in writing after stating that he discussed his right to
appeal with defense counsel. The majority concedes that the
record in People v Rosario is less clear, and because that record
in Rosario does not show that defense counsel consulted with
defendant regarding his right to appeal, when consultation was
necessary, I would reverse and grant a hearing on Rosario's
petition.
As the United States Supreme Court held in Roe v
Flores-Ortega, "counsel has a constitutionally imposed duty to
consult with the defendant about an appeal when there is reason
to think either (1) that a rational defendant would want to
appeal (for example, because there are nonfrivolous grounds for
appeal), or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing" (528
U.S. 470, 480 [2000]). To "consult" means "advising the defendant
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about the advantages and disadvantages of taking an appeal, and
making a reasonable effort to discover the defendant's wishes"
(id. at 478). The "better practice" in all cases is for defense
counsel to consult with defendant (see id. at 479). In Flores-
Ortega, defense counsel failed to file an appeal after the
defendant specifically requested it (id. at 474) while the
defendant's file indicated that defense counsel consulted with
the defendant regarding his right to appeal. The Supreme Court
did not go so far as to hold that counsel must in all cases "file
a notice of appeal" or "discuss the possibility of an appeal with
the defendant" (id. at 478), but where the defendant may be
interested in appealing, consultation is required.
The Appellate Division rules and the ABA Standards for
Criminal Justice reaffirm the consultation requirements laid out
in Flores-Ortega. According to the rules promulgated by each
Appellate Division, defense counsel must "immediately after the
pronouncement of sentence" advise a defendant in writing of the
right to appeal and the time limitations involved (see Rules of
App Div [22 NYCRR] § 606.5 [b]; 671.3 [a], [b]; 821.2 [a];
1022.11 [a]). Similarly, under the ABA Standards for Criminal
Justice, defense counsel should explain the right to appeal, give
his or her professional judgment on the merits of an appeal, and
"explain to the client the advantages and disadvantages of an
appeal"; "the ultimate decision whether to appeal should be the
client's" (ABA Standards for Criminal Justice, Preparing to
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Appeal, 4-9.1 [4th ed. 2015]).
Where, as in Rosario, it is abundantly clear that
defendant was confused about his rights at the first sentencing
proceeding, it was incumbent upon defense counsel to ensure that
defendant understood his right to appeal. The record provides no
evidence that this conversation ever took place and defendant
asserts that it did not. Defense counsel, with personal
knowledge of the facts, did not submit an affidavit. The
majority simply ignores the glaring omissions in the record and,
for the sake of convenience, denies a hearing by characterizing
defendant's assertions as "self-serving," and thus, in its view,
worthless.
* * * * * * * * * * * * * * * * *
For Case No. 191: Order affirmed. Opinion by Judge Pigott.
Judges Abdus-Salaam, Stein and Fahey concur. Chief Judge Lippman
dissents in an opinion in which Judge Rivera concurs.
For Case No. 192: Order affirmed. Opinion by Judge Pigott.
Judges Abdus-Salaam, Stein and Fahey concur. Chief Judge Lippman
concurs in a separate opinion in which Judge Rivera concurs.
Decided December 16, 2015
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