        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

368
KA 10-01359
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARVIN FORSYTHE, DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

MARVIN FORSYTHE, DEFENDANT-APPELLANT PRO SE.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Oneida County Court (Michael L. Dwyer, J.), dated May 3, 2010.
The order denied the motion of defendant pursuant to CPL 440.10.

     It is hereby ORDERED that said appeal is unanimously converted to
a motion for a writ of error coram nobis, the motion is granted in
accordance with the following Memorandum and the matter is remitted to
Oneida County Court for proceedings pursuant to CPL 470.45: After
defendant was charged with criminal possession of a controlled
substance in the first degree (Penal Law § 220.21 [1]) and criminal
possession of a controlled substance in the third degree (§ 220.16
[1]), County Court granted that part of defendant’s motion to dismiss
the indictment charging him with those crimes. The People appealed,
and we reversed the order and reinstated the indictment (People v
Forsythe, 20 AD3d 936). Defendant had been represented by retained
counsel during the proceedings in County Court, and the People’s
notice of appeal was served on defense counsel. Defense counsel sent
a letter to the People requesting the grand jury minutes, but she did
not file a brief in opposition to the People’s appeal before this
Court, nor does the record reflect that she otherwise made any
appearance before this Court.

     After we reinstated the indictment, defendant was convicted upon
a jury verdict of attempted criminal possession of a controlled
substance in the first degree (Penal Law §§ 110.00, 220.21 [1]) and
attempted criminal possession of a controlled substance in the third
degree (§§ 110.00, 220.16 [1]). Defendant appealed, and we affirmed
(People v Forsythe, 59 AD3d 1121, lv denied 12 NY3d 816). After we
denied defendant’s motion for a writ of error coram nobis (People v
Forsythe, 46 AD3d 1476, lv denied 10 NY3d 934), defendant moved to
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                                                         KA 10-01359

vacate the judgment pursuant to CPL 440.10 on the ground that he was
denied his right to counsel or his right to effective assistance of
counsel on the People’s interlocutory appeal from the order in
Forsythe (20 AD3d 936). The court denied the motion, and we granted
defendant permission to appeal.

     A claim of ineffective assistance of appellate counsel must be
raised in an error coram nobis proceeding (see People v Bachert, 69
NY2d 593, 595-596; People v Smith, 78 AD3d 1583, 1584). We convert
defendant’s appeal from the order denying his CPL 440.10 motion to a
motion for a writ of error coram nobis (see People v Angulo, 140 AD2d
209, lv dismissed 72 NY2d 855), and we grant the motion.

     “It is well settled that criminal defendants are entitled under
both the Federal and State Constitutions to effective assistance of
appellate counsel” (People v Borrell, 12 NY3d 365, 368). In addition,
“defendants have important interests at stake on a People’s appeal”
(People v Ramos, 85 NY2d 678, 684). “Given the consequences of a
reversal and the possible resumption of criminal proceedings, the
defendant certainly has an interest in being informed that the
People’s appeal is pending and continuing” (id. at 684-685).
“Moreover, . . . other rights requiring protection upon the People’s
appeal include the right to appellate counsel of the defendant’s own
choice, the right to appear [pro se] on the appeal, and the right to
seek appointment of counsel upon proof of indigency” (id. at 685).
However, due process does not require that a defendant be personally
served with the People’s appellate briefs (see id. at 681).

     There is no showing on this record that the court upon dismissing
the indictment complied with 22 NYCRR 200.40 (a) (1) through (3) by
advising defendant that the People had the right to take an appeal;
that defendant had the right to counsel on the appeal or to appear pro
se; and that defendant had the right to assigned counsel on the appeal
if he was financially unable to retain counsel (see Matter of Donovan
v Pesce, 73 AD3d 137, 138, lv denied 15 NY3d 702). Nor is there any
showing that the People or defense counsel advised defendant of those
rights. The record establishes that the court issued its ruling
dismissing the indictment to the prosecutor and defense counsel on
April 6, 2005, and that the People filed their notice of appeal on
April 7, 2005. According to defendant, defense counsel visited him in
jail before the People filed their notice of appeal and apprised him
of the court’s ruling. Although the indictment was dismissed,
defendant continued to be held on a violation of parole. Indeed,
while defendant averred that defense counsel advised him that the
People could potentially appeal from the order, he was never advised
by defense counsel that he had “the right to counsel - - court
appointed or retained - - [or] the right to proceed pro se” on the
appeal.

     Moreover, this Court failed to ascertain whether defendant was
represented or had waived counsel on the People’s appeal (see People v
Garcia, 93 NY2d 42, 44). “When it was discerned that defendant was
unrepresented on appeal, absent record evidence that defendant was
informed of his right to counsel and that he waived that right, [this]
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                                                         KA 10-01359

Court should not have proceeded to consider and decide the People’s
appeal” (id. at 46). The People contend that Garcia is
distinguishable from this case because here it appeared to the People
that defendant was represented by counsel, inasmuch as defense counsel
informed the People that she had received the People’s brief and
requested the grand jury minutes. However, as previously noted, our
records do not reflect that defense counsel made any appearance on
behalf of defendant on the People’s appeal. In addition, there is no
showing that defendant was informed of his right to representation on
the appeal or to appear pro se.

     Therefore, the orders of this Court entered July 1, 2005
(Forsythe, 20 AD3d 936) and February 11, 2009 (Forsythe, 59 AD3d 1121)
are vacated, the judgment of conviction is vacated, and this Court
will consider the People’s appeal de novo. The People shall perfect
the appeal on or before July 25, 2013.




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
