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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 193
The People &c.,
            Respondent,
        v.
Howard Grubstein,
            Appellant.




             Richard L. Herzfeld, for appellant.
             Elizabeth L. Schulz, for respondent.




SMITH, J.:
             We hold that a defendant who asserts that he was
deprived of his right to counsel when he pleaded guilty pro se is
not barred from raising that claim in a motion under CPL 440.10
by his failure to raise it on direct appeal.
             In 2008, defendant pleaded guilty in Tuxedo Town Court

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to a misdemeanor charge of driving while intoxicated.   He was not
represented by counsel in the Town Court proceeding, was not
advised of his right to appeal, and took no appeal.   In 2010,
having been arrested again for a similar offense, he was charged
with a felony under Vehicle and Traffic Law § 1193 (1) (c) (i),
applicable to a person who drives while intoxicated after having
been convicted of such a crime within the preceding 10 years.    He
then moved in Town Court to withdraw his 2008 guilty plea.
           Town Court granted the motion, concluding that
defendant's "waiver of counsel was not made knowingly or
intelligently."   On the People's appeal, the Appellate Term
reversed, concluding that Town Court erred in deciding the merits
of "certain of defendant's claims" because "to the extent that
adequate facts appeared in the record to evaluate" those claims
"the only possible avenue of review was a direct appeal" (People
v Grubstein, 37 Misc 3d 142(A) [App Term 2012]).   A Judge of this
Court granted leave to appeal (21 NY3d 1015 [2013]), and we now
reverse.
           It is correct as a general matter that, when the record
is sufficient to permit review of an issue on direct appeal, a
defendant who either has not appealed his conviction or, having
appealed, has failed to raise that issue is barred from later
asserting it as a basis for post-conviction relief (see People v
Cuadrado, 9 NY3d 362 [2007]).   CPL § 440.10 (2) (c) says:
           "Notwithstanding the provisions of
           subdivision one, the court must deny a motion

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          to vacate a judgment when:
                              * * *
          " (c) Although sufficient facts appear on the
          record of the proceedings underlying the
          judgment to have permitted, upon appeal from
          such judgment, adequate review of the ground
          or issue raised upon the motion, no such
          appellate review or determination occurred
          owing to the defendant's unjustifiable
          failure to take or perfect an appeal during
          the prescribed period or to his unjustifiable
          failure to raise such ground or issue upon an
          appeal actually perfected by him[.]"
          But there is an obvious risk of unfairness in applying
this procedural bar where the ground that the defendant seeks to
raise is that he was deprived of his right to counsel.    If he was
indeed deprived of that right, that very deprivation may well
have led him either not to appeal or not to have presented the
issue to an appellate court.   A defendant who has wrongly been
deprived of a lawyer can hardly be blamed for failing to follow
customary legal procedures.
          Section 440.10 (2) (c) itself appears to recognize this
problem, by making its bar applicable only where the failure to
appeal, or the failure to raise a particular argument, is
"unjustifiable."   The statute thus implies that such failures are
sometimes justifiable, and an interference with the right to
counsel that impaired the defendant's ability to pursue appellate
relief should normally be a sufficient justification.    Here, the
justification is made stronger by Town Court's failure, at the
time of the 2008 plea and sentence, to advise defendant of his
right to appeal, though an applicable regulation requires that


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advice to be given when a defendant appears pro se (see 22 NYCRR
671.5).
          Before the enactment of CPL 440 New York courts
recognized, in cases discussing the writ of error coram nobis,
section 440's common-law predecessor, that the usual procedural
barriers to post-conviction relief must sometimes be relaxed when
a violation of the right to counsel is claimed.   "'Judicial
interference with the right to counsel guaranteed to defendant by
law may warrant the extraordinary remedy of coram nobis, even
though the error appears on the face of the record'" (People v
Hannigan, 7 NY2d 317, 318 [1960] [per curiam], quoting People v
Silverman, 3 NY2d 200, 202 [1957]; see also People ex rel. Sedlak
v Foster, 299 NY 291, 294 [1949]; Matter of Bojinoff v People,
299 NY 145, 152 [1949]; Hogan v Court of Gen. Sessions of County
of N.Y., 296 NY 1, 9 [1946]).   The limitation of CPL 440.10 (2)
(c)'s procedural bar to cases of "unjustifiable" failure may be
seen as a codification of the rule stated in those cases.
          We conclude, in short, that defendant was not barred
from raising his right to counsel claim in a CPL 440 motion.    We
express no opinion on the merits of the claim.
          Accordingly, the order of the Appellate Term should be
reversed and the case remitted to the Appellate Term for
consideration of issues raised but not determined on the appeal
to that court.




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*   *   *   *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order reversed and case remitted to the Appellate Term, Ninth and
Tenth Judicial Districts, for consideration of issues raised but
not determined on the appeal to that court. Opinion by Judge
Smith. Chief Judge Lippman and Judges Graffeo, Read, Pigott,
Rivera and Abdus-Salaam concur.

Decided November 18, 2014




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