This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 115
The People &c.,
            Respondent,
        v.
Mario Arjune,
            Appellant.




          Jenin Younes, for appellant.
          William H. Branigan, for respondent.
          National Association of Criminal Defense Lawyers, et
al., amici curiae.




STEIN, J.:
           In People v Syville (15 NY3d 391 [2010]), we held that,
in rare circumstances, a defendant may seek coram nobis relief
despite failing to move for an extension of time to file a notice
of appeal within the one-year grace period provided by CPL
460.30.   Specifically, we concluded that coram nobis may be


                               - 1 -
                                - 2 -                         No. 115

available for a defendant who demonstrated that he or she timely
requested that trial counsel file a notice of appeal, the
attorney failed to comply, and the omission could not reasonably
have been discovered within the one-year time limit (see id. at
400-401).   Defendant now asks us to expand Syville to situations
in which retained trial counsel filed a timely notice of appeal
but allegedly failed to advise the defendant of his or her right
to poor person relief, or to take any action when served with a
motion to dismiss the appeal years after the notice of appeal was
filed.   Because defendant has not met his burden of proving that
counsel was ineffective, we decline to expand Syville under the
circumstances presented here.
                                 I.
            Defendant, an English-speaking immigrant from Suriname,
asserts that he is minimally literate and has cognitive
limitations, which admittedly did not prevent him from
maintaining employment in construction, managing independent
living skills, taking his elderly mother to doctor appointments
and ensuring that she took her medication, and helping his
girlfriend's teenage child complete her homework.    Defendant
immigrated to the United States in 2006.    In 2008, he was charged
with attempted murder in the second degree, assault in the first
degree, tampering with physical evidence, and possession of a
weapon in the fourth degree.    The charges arose out of an
incident in which defendant used a boxcutter to stab another man


                                - 2 -
                                - 3 -                        No. 115

in the chest, stomach and leg, and then hid the boxcutter --
which was covered in blood -- in a ceiling tile in the bathroom
of the restaurant where the stabbing took place.   Defendant
retained counsel, who asserted a justification defense at the
ensuing jury trial.   Counsel was able to obtain defendant's
acquittal on the attempted murder and first-degree assault
charges.   Defendant was convicted, however, of tampering with
physical evidence and criminal possession of a weapon in the
fourth degree.   He was sentenced to an aggregate term of 1 to 3
years in prison.
           At sentencing, the court clerk stated, "[l]et the
record reflect the defendant is being handed a notice of appeal."
The People have provided us with the standard "Notice of
Defendant of His Right to Appeal" that is handed to all Queens
County defendants.1 Counsel filed a notice of appeal on
defendant's behalf the day after sentencing.
           Defendant was released from prison in March 2010, four
months after being sentenced.   He did not retain an attorney,
move for poor person relief or attempt to obtain assistance in


     1
       The form states: "You have a right to appeal to the
Appellate Division, Second Department, within thirty [30] days
and, in addition, upon proof of your financial inability to
retain counsel and to pay the cost and expenses of the appeal,
you have the right to apply to the Appellate Division, Second
Department, for the assignment of counsel and for leave to
prosecute the appeal as a poor person and to dispense with
printing. The Appellate Division, Second Department, is located
at 45 Monroe Place, Brooklyn, New York 11201."


                                - 3 -
                               - 4 -                           No. 115

perfecting the appeal.   In October 2013, approximately four years
after the notice of appeal was filed, the People moved in the
Appellate Division to dismiss the appeal as abandoned.    As
required by CPL 470.60, the People sent a copy of the motion to
dismiss both to defendant at his last known residence and to
counsel.   Neither defendant nor counsel responded, and the
Appellate Division dismissed the appeal in December 2013.
           One year later, in December 2014, defendant was
remanded to the custody of Immigration and Customs Enforcement
for deportation and was released on bond.   Defendant's
immigration attorney referred him to an appellate indigent
defense provider, who moved to reinstate defendant's appeal in
April 2015.   Although the People filed a response taking no
position on the motion, the Appellate Division denied it.2      In
October 2015, nearly six years after the notice of appeal was
filed, defendant moved for a writ of error coram nobis, claiming
that he was denied the effective assistance of counsel in
perfecting his appeal.
           In connection with his coram nobis application,
defendant submitted an affidavit in which he stated, without
proof, that counsel did not speak with him during or after his
trial about an appeal, about the fact that his conviction could


     2
       The Appellate Division's denials of defendant's motion to
reinstate and his subsequent motion for reconsideration are not
before us, and we have no occasion to consider the merits
thereof.

                               - 4 -
                                 - 5 -                       No. 115

subject him to deportation, or about poor person relief.    He
averred that he did not know that a notice of appeal was filed
and that he would have pursued the appeal if he knew about the
deportation consequences of his conviction and his right to an
attorney.3    Trial counsel also submitted an affirmation in which
he stated that he was retained to represent defendant at trial
and filed a notice of appeal on defendant's behalf but, after he
did so, he did not remember speaking to defendant about how to
perfect the appeal.    Counsel indicated that he believed his
representation, as retained trial counsel, ended after the filing
of the notice of appeal because "[i]t was understood that [he]
was trial and not appellate counsel."    Counsel also stated that
he had no recollection of receiving the People's motion to
dismiss the appeal.
             The Appellate Division denied the coram nobis motion,
without opinion (138 AD3d 877 [2d Dept 2016]), and a Judge of
this Court granted defendant leave to appeal (27 NY3d 1148
[2016]).
                                  II.
             Despite trial counsel's having secured an acquittal on
the charges of attempted murder and first-degree assault, as well
as a sentence that resulted in defendant being released from
prison four months after his trial ended, defendant now claims

     3
       Although he now claims, without direct evidentiary
support, that his parents paid counsel to represent him at trial,
defendant indicated in his affidavit that he retained counsel.

                                 - 5 -
                                - 6 -                        No. 115

that counsel was ineffective.   Defendant argues that, due to his
purported cognitive limitations, he was ill-equipped to obtain
poor person relief in connection with the process of appealing
his conviction, to oppose the dismissal of his appeal or to
perfect it without any guidance from an attorney.   Defendant and
Judge Rivera, in dissent, cite the rules of all four Appellate
Division Departments, which were in effect at the time of his
conviction, requiring trial counsel to inform his or her client,
in writing, of the right to appeal and provide basic information
necessary to pursue the appeal, including the right to seek poor
person relief and how to do so if the client is indigent (see 22
NYCRR 606.5 [b]; 671.3 [a]; 821.2 [a];   former 1022.11 [a]).
Defendant and Judge Rivera, in dissent, maintain that the
existence of such directives -- as well as bar association
standards mandating that counsel assist in procuring poor person
relief and take steps to ensure that an appeal is not unwittingly
forfeited -- establishes defendant's entitlement to a writ of
error coram nobis based upon his unsupported claims that counsel
failed to assist him in obtaining poor person relief or to
respond to the People's motion to dismiss four years after the
notice of appeal was filed.
          This argument is undermined by this Court's holdings,
in two cases, that defendants are not "constitutionally entitled
to appointment of counsel to assist in preparing a poor person
application" (People v Perez, 23 NY3d 89, 99 [2014]; see People v


                                - 6 -
                               - 7 -                         No. 115

West, 100 NY2d 23, 28 [2003], cert denied 540 US 1019 [2003]).
That is, we expressly rejected the argument that "an application
for poor person relief is a critical stage of the proceeding to
which [a defendant's] Sixth Amendment and due process rights to
counsel attach" (West, 100 NY2d at 28).   Perez and West involved
review of Appellate Division dismissals of appeals for failure to
perfect.   We explained that, while our "state's processes must
provide the criminal appellant with the minimal safeguards
necessary to make an adequate and effective appeal" (West, 100
NY2d at 28), "it is not unconstitutional to require a defendant
to take some minimal initiative to assure himself adequate
representation on appeal" (Perez, 23 NY3d at 100).4   Notably, in
both West and Perez, the Court concluded that written notices
similar to the one provided to defendant at sentencing here
"[c]learly . . . informed [the defendants] of [their] right to
appeal and more specifically, how to apply for poor person
relief," and thus "belied" any claims that delays in perfecting
their appeal should not be counted against them (West, 100 NY2d


     4
       We reasoned that "the concerns underlying a due process
right to counsel on direct appeal are not present in the
mechanism by which an indigent defendant seeks poor person
relief. An appellant need only advise the appellate court of
income, its source(s), and a list of property owned and its
value. This personal information is uniquely available to the
appellant -- the assistance of counsel is not necessary to
uncover or develop it. Consequently, the need for careful
advocacy to ensure substantial legal and factual arguments are
not passed over is not implicated" (People v West, 100 NY2d 23,
28-29 [2003]).


                               - 7 -
                              - 8 -                          No. 115

at 27; see Perez, 23 NY3d at 99).
          Given this legal backdrop -- i.e., the Court's holdings
in West and Perez that a defendant is not constitutionally
entitled to the assistance of counsel in seeking poor person
relief as long as he or she is given written notice that is
similar to the one defendant received here -- defendant has a
heavy burden to demonstrate entitlement to a writ of error coram
nobis premised on ineffective assistance of counsel for failing
to assist in procuring poor person relief.   Although the
dissenters fail to recognize the distinction, we emphasize that
defendant does not challenge the dismissal of his appeal by the
Appellate Division for failure to perfect, as in Perez and West;
nor does this appeal involve the Appellate Division's resolution
of a motion to extend the time to appeal under court rules (cf.
People v Zanghi, 159 AD2d 1030 [1990]).    Rather, this appeal is
from the denial of a coram nobis motion.   Therefore, defendant
bore the burden of demonstrating that he was denied meaningful
assistance -- that counsel's actions in allegedly failing to
assist defendant in obtaining poor person relief were not
"consistent with those of a reasonably competent . . . attorney"
(People v Borrell, 12 NY3d 365, 368 [2009]).   He failed to meet
that burden here, both in terms of his specific claim that
counsel did not advise him of his right to seek poor person
relief in connection with his appeal and the more general claim,
advanced by both Judge Rivera and Judge Wilson in dissent, that


                              - 8 -
                                 - 9 -                         No. 115

counsel did not consult with him regarding an appeal.
          With respect to the other prong of defendant's coram
nobis motion (based on failure to respond to the dismissal motion
four years after the notice of appeal was filed) defendant and
Judge Rivera, in her dissent, essentially seek a rule that trial
counsel has a constitutional responsibility in connection with an
appeal for an indefinite period of time extending for years after
the notice of appeal is filed.    Neither defendant nor that
dissent cite any legal support for the imposition of such a rule.
Moreover, the cases that defendant cites concerning
ineffectiveness of counsel and entitlement to coram nobis relief
-- including Syville -- do not support imposing either such an
open-ended obligation on behalf of trial counsel or a rule that
counsel is ineffective for failing to assist a defendant in
obtaining poor person relief.
                                 III.
          The federal rule on ineffectiveness of counsel when an
attorney completely fails to file a notice of appeal was
enunciated in Roe v Flores-Ortega (528 US 470 [2000]).5     In that
case, the Supreme Court declined to hold that a trial attorney's
performance was deficient per se for failing to file a notice of
appeal whenever a client did not clearly instruct otherwise (see
id. at 478).   The Court concluded that such a rule would

     5
       Roe v Flores-Ortega (528 US 470 [2000]) is distinguishable
because, here, counsel did file a notice of appeal. Nonetheless,
Roe is instructive.

                                 - 9 -
                               - 10 -                          No. 115

"effectively impose[] an obligation on counsel in all cases
either (1) to file a notice of appeal, or (2) to discuss the
possibility of an appeal with the defendant, ascertain his
wishes, and act accordingly" (id.).     The Court recognized that
filing a notice of appeal is a "purely ministerial task that
imposes no great burden on counsel" (id. at 474), and that
counsel's failure to file a notice when asked to do so works a
"forfeiture of a proceeding itself," depriving a defendant of "an
appeal altogether" (id. at 483).    Nevertheless, the Supreme Court
rejected a per se rule because holding "as a constitutional
matter, that in every case counsel's failure to consult with the
defendant about an appeal is necessarily unreasonable, and
therefore deficient[,] . . . would be inconsistent with both
. . . Strickland6 and common sense" (id. at 479).       The Court
further explained that "detailed rules for counsel's conduct have
no place in a Strickland inquiry" -- i.e., in an ineffective
assistance of counsel inquiry under the federal standard (id. at
480 [internal quotation marks and citation omitted]).
            Thus, the Supreme Court held that -- although the
better practice is to routinely consult with a client -- an
attorney has a constitutional obligation to consult with a client
regarding taking an appeal only 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

     6
         Strickland v Washington (466 US 668 [1984]).

                               - 10 -
                              - 11 -                         No. 115

(2) that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing" (id. at 480).      The
Court expressly defined "consult" as "advising the defendant
about the advantages and disadvantages of taking an appeal and
making a reasonable effort to discover the defendant's wishes"
(id. at 478).   That definition must be read in the context of the
Court's hypothetical indicating that such consultation would not
be required when "a sentencing court's instructions to a
defendant about his appeal rights in a particular case are so
clear and informative as to substitute for counsel's duty to
consult[] [because,] [i]n some cases, counsel might then
reasonably decide that he need not repeat that information" (id.
at 479-480).7   The acknowledgment in Roe that the sentencing


     7
       We note that Judge Rivera's conclusion that this statement
in Roe (528 US at 479-480) is misleading (Judge Rivera, dissent
op, at 16-17) is more properly directed at the United States
Supreme Court. The same is true for the dissent's conclusion
(Judge Rivera, dissent op, at 12-13) that the Roe Court
essentially contradicted Strickland when quoting it for the
proposition that "'[p]revailing norms of practice as reflected in
American Bar Association standards and the like . . . are only
guides,' and imposing 'specific guidelines' on counsel is 'not
appropriate.' And, while States are free to impose whatever
specific rules they see fit to ensure that criminal defendants
are well represented, we have held that the Federal Constitution
imposes one general requirement: that counsel make objectively
reasonable choices" (Roe, 528 US at 479, quoting Strickland 466
US at 688). That said, nothing in this decision should be read
to minimize the importance of these standards or state rules, to
prohibit the adoption of such rules either administratively or by
the Legislature, or to contradict our prior decision that a writ
of error coram nobis may lie when the violation of court rules
results in a complete deprivation of counsel on a People's appeal
(see People v Brun, 15 NY3d 875, 876-877 [2010]). Rather, we

                              - 11 -
                              - 12 -                        No. 115

court may satisfy trial counsel's duty necessarily implies that
the Court's definition of "consult" cannot logically be read to
extend trial counsel's duty to consult with the defendant
regarding the merits with a view toward deciding whether to
perfect the appeal.   Nor does Roe address whether such
consultation is required when, as here, a notice of appeal was
filed.
          Syville itself -- which relied on Roe -- is an
expansion of CPL 460.30, which "permits the Appellate Division to
excuse a defendant's failure to file a timely notice of appeal
from a criminal conviction if the application is made within one
year of the date the notice was due" (15 NY3d at 394).    This
Court cited Roe for the propositions that: (1) "[w]hen defense
counsel disregards a client's timely request to file a notice of
appeal, the attorney acts in a manner that is professionally
unreasonable" (id. at 397 [internal quotation marks and citation
omitted]); and (2) "to establish a constitutional violation in
this context, a defendant need not identify potentially
meritorious issues that would be raised on appeal; the defendant
need only demonstrate that, as a result of counsel's deficient
performance, appellate rights were extinguished" (id. at 398).
Our narrow holding in Syville was that "the coram nobis procedure



simply conclude that it cannot be said, "as a constitutional
matter, that in every case counsel's failure to [comply with
every aspect of such directives] is necessarily unreasonable, and
therefore deficient" (Roe, 528 US at 479).

                              - 12 -
                              - 13 -                         No. 115

is available to afford further relief to defendants who did not
move within the one-year grace period because they were unaware
during that year that their attorneys had not complied with their
requests to file notices of appeal" (id.).
          Syville was grounded in the principle that "[t]he Due
Process Clause prohibits a defendant from being denied the right
to appeal as a consequence of the violation of another
constitutional right -- the right to the effective assistance of
counsel on direct appeal" (id. at 398).   Thus, we recognized that
a limited exception to the one-year time limit imposed in CPL
460.30 was necessary when counsel failed to comply with a request
to file a notice of appeal.   We noted, however, that "it will be
the rare case where this exception must be utilized," explaining
that, "in most cases strict enforcement of the CPL 460.30 time
limit is constitutionally permissible because attorneys usually
accede to their clients' requests to file notices of appeal and,
when they fail to do so, most defendants are in a position to
discover the omission within the statutory grace period" (id. at
400 n 2 [emphasis added]).
          Subsequently, in People v Andrews (23 NY3d 605 [2014]),
we reiterated that "the holding of Syville -- that coram nobis
may be used to assert a claim that appellate rights were
extinguished by ineffective legal assistance -- was a narrow
one," noting that "[o]nly defendants who 'could not reasonably
have . . . discovered' the omission during that period are


                              - 13 -
                              - 14 -                        No. 115

entitled to utilize the coram nobis procedure" (id. at 614,
quoting Syville, 15 NY3d at 399, 400 n 2 [emphasis added]).    We
further emphasized that the burden is on the defendant seeking
coram nobis relief, stating that "Syville conditions coram nobis
relief on a defendant's ability to demonstrate that appellate
rights were lost as a result of ineffective assistance" (Andrews,
23 NY3d at 615).8   Thus, "perfunctory claims" that a defendant
requested his or her lawyer file a notice of appeal or that the
defendant was unable to discover counsel's failure to file a
notice are insufficient, particularly where, as in the case
currently before us, the sentencing "court's usual practice [was]
to provide defendants with written notice of the right to appeal"
(id. at 615-616).
          Finally, in People v Rosario (26 NY3d 597 [2015]), the
Court answered a question expressly left open in Syville, holding
that "[i]n order to obtain exceptional relief beyond the time
permitted under CPL 460.30, a defendant must show that he
exercised due diligence" (id. at 604).   We noted in Rosario that
the defendants (like defendant here) "claim[ed] that counsel did
not advise them of the right to appeal and had [they] known about


     8
       The fundamental flaw in both dissenters' reasoning is that
they fail to recognize that defendant bore the burden here; they
simply accept all facts alleged by defendant as true and afford
him every possible favorable inference as if we were considering
a motion to dismiss a civil complaint (see Leon v Martinez, 84
NY2d 83, 87 [1994]), as opposed to an application for a writ of
error coram nobis (see People v Andrews, 23 NY3d 605, 615-616
[2014]).

                              - 14 -
                             - 15 -                         No. 115

their right to appeal, they would have requested one.   However,
in both appeals, the only evidence proffered in support of the
contention that [the] defendants were not apprised of their
appellate rights [was] self-serving affidavits" (id. at 603).
Moreover, the Rosario defendants failed to "make any showing that
they took steps toward discovering the omission or explain why
years passed before they sought coram nobis relief" (id. at 604).
In other words, Rosario establishes that it is not sufficient for
purposes of showing due diligence for a defendant merely to make
an unsupported claim that he or she never knew of the right to
appeal; nor are the People required to rebut such unsubstantiated
allegations.
          The Court also determined in that case that the
records, taken as a whole, demonstrated that the defendants were
aware of their right to appeal, noting that "[b]oth the oral and
written waivers in these cases are contrary to defendants' claims
that they were unaware of their right to appeal" (id. at 604).
In so determining, the Court rejected the position of the
dissenters in Rosario, who would have reversed on the ground that
a defendant is entitled to coram nobis relief under Roe when the
record does not demonstrate that counsel consulted with defendant
about the appeal, including giving the attorney's "professional
judgment on the merits of an appeal" (id. at 605).   Thus, the
Rosario majority also implicitly rejected any notion that a
defendant's unsupported affidavit is sufficient to establish


                             - 15 -
                              - 16 -                         No. 115

entitlement to coram nobis relief whenever the record does not
otherwise clearly demonstrate that trial counsel consulted with
defendant on the merits of an appeal.
                                IV.
           Here, apart from his affidavit stating that he did not
recall receiving anything in writing about taking an appeal or
discussing an appeal with counsel, defendant submitted no
nonhearsay proof regarding whether he was made aware of his right
to appeal or whether his attorney discussed the taking of an
appeal with him prior to filing the notice of appeal.      Indeed,
defendant never even denied that the form handed to him at
sentencing -- while counsel presumably stood next to him -- was
the standard form handed to every defendant.   He averred only
that he did "not remember getting anything in writing about an
appeal."   Nor did defendant establish that he was unable to
understand the form, including its instruction on how to obtain
poor person relief, particularly given the fact that he was
previously capable of retaining trial counsel.
           Further, even if the receipt of the standard form was
not sufficient under Perez and West, defendant failed to meet his
burden of demonstrating that he was unaware of his appellate
rights, how to seek poor person relief, or how to otherwise
perfect the appeal, or that counsel failed to comply with the
relevant court rules.   Trial counsel's carefully worded
affirmation does not support defendant's claims that he never


                              - 16 -
                               - 17 -                        No. 115

discussed appealing, did not consult with defendant after
sentencing, or failed to inform defendant that he would need
either a different lawyer for an appeal or to apply for poor
person relief; counsel's affirmation indicates merely that,
"after filing the notice of appeal," counsel had no contact with
defendant or his family.   The affirmation did not outline
counsel's standard practice -- presumably in an attempt to
distinguish Andrews (see 23 NY3d at 615) and Rosario (26 NY3d at
604) -- or address whether he consulted with defendant before
filing the notice of appeal.   Defendant has made no effort to
present evidence of what conversations, if any, took place during
this gap beyond a statement that, "[a]s far as [he] remember[ed],
[counsel] did not talk to [him] about an appeal during or after
[his] trial."
          Defendant did submit an affirmation from his
immigration attorney about his lack of understanding of his right
to appeal.   However, that affirmation consists largely of
hearsay, which parrots the claims asserted in defendant's own
affidavit, and therefore also fails to satisfy defendant's burden
on this coram nobis application.   The affirmation of his current
attorney -- which recounts a conversation that she had with
defendant's mother in which the mother allegedly stated that she
and her husband paid defense counsel to represent defendant and
that she did not remember defense counsel mentioning an appeal --
similarly reflects a lack of first-hand knowledge of the relevant


                               - 17 -
                               - 18 -                        No. 115

facts.    Notably, while both of defendant's parents submitted
their own sworn affidavits recounting defendant's background,
neither parent was willing to swear that trial counsel failed to
discuss an appeal with them or to inform them that he was not
acting as appellate counsel.    In any event, current counsel's
claim is contradicted by defendant's own affidavit stating that
he "paid [counsel] to represent [him] at [his] trial."
            Thus, as in Rosario, we are asked to expand Syville to
hold that a defendant is entitled to coram nobis relief based on
an otherwise unsupported affidavit claiming that counsel did not
consult with the defendant regarding an appeal and, had counsel
done so, the defendant would have appealed.    Indeed, although we
rejected such an expansion of Syville in Rosario, we are now
asked to go even further and hold that such unsubstantiated
claims entitle a defendant to coram nobis relief, not only when a
notice of appeal is not filed, but also when trial counsel files
a notice of appeal, but allegedly fails to assist a defendant in
applying for poor person relief -- a stage of the proceedings in
which we have held that counsel is not required to assist a
defendant when he or she has received instructions on how to do
so (see Perez, 23 NY3d at 99; West, 100 NY2d at 28) -- or to
respond to a motion to dismiss years after filing a notice of
appeal.    Such a holding would represent a significant expansion
of Syville, a case that, as we have repeatedly emphasized,
recognized only a narrow exception to the one-year deadline


                               - 18 -
                              - 19 -                        No. 115

imposed by CPL 460.30 for filing a notice of appeal that is,
itself, to be used rarely.
          Moreover, defendant has not shown that it was
impossible to discover the alleged omission with reasonable
diligence, even in spite of his alleged cognitive limitations.
In Rosario, even where the defendants claimed that they were
never aware of the right to appeal -- as defendant claims here --
they were nonetheless required to demonstrate what steps they
took to discover the omission and explain why they waited years
to obtain coram nobis relief (see Rosario, 26 NY3d at 603-604).
Here, defendant has not even attempted to make such a showing,
apart from his unsupported claim that he was not aware of his
right to appeal.   In fact, the record suggests that the reason
defendant waited years to pursue further relief was that he was
not interested in appealing his conviction and relatively short
sentence until his status as a convicted felon led to further
consequences.   That is, "[t]he facts permit an inference that
th[is] defendant[] did not simply neglect [his] appellate rights,
but consciously chose not to exercise them until [he] acquired a
reason to do so" (Perez, 23 NY3d at 101).
          In light of the foregoing, we decline defendant's
invitation to expand Syville and, instead, hold that coram nobis
is unavailable under the circumstances presented here.    Beyond
some evidence of his cognitive limitations, defendant has
provided only an unsupported affidavit indicating merely that he


                              - 19 -
                             - 20 -                        No. 115

was unaware of the right to appeal, and he has failed to show due
diligence as required by Rosario.   He has, therefore, failed to
"demonstrate that appellate rights were lost as a result of
ineffective assistance" (Andrews, 23 NY3d at 615).   Inasmuch as
defendant's papers were insufficient on their face to meet his
burden on this coram nobis application, the Appellate Division
was within its authority to so hold.   Accordingly, the order of
the Appellate Division should be affirmed.




                             - 20 -
People v Mario Arjune
No. 115




RIVERA, J.(dissenting):

           A lawyer failed to live up to prevailing professional
standards, depriving his client of the fundamental right to
appeal.   In so doing, he violated the United States Supreme
Court's holding from Roe v Flores-Ortega (528 US 470 [2000]),
under which lawyers must make objectively reasonable choices
about pursuing appeals on their clients' behalf.   The majority
today nevertheless holds that counsel was not ineffective, a
decision that runs afoul of United States Supreme Court precedent
and state jurisprudence, and deprives defendant of fundamental
due process rights.
           The facts of this case are stark.   After completing the
"purely ministerial task" (id., 528 US at 477) of filing a one-
page notice of appeal on defendant's behalf, counsel had no
contact with defendant or his family.   Counsel failed to comply
with the Appellate Division Department's own rules, which dictate
that counsel must advise a defendant in writing of the right to
apply for poor person relief if indigent and submit the
application on defendant's behalf if defendant so requests.    The
record demonstrates that counsel's representation falls below
applicable professional standards adopted by the American Bar


                               - 1 -
                                - 2 -                        No. 115

Association, New York State Bar Association, and National Legal
Aid and Defender Association.    As a consequence of counsel's
failures, the Appellate Division dismissed defendant's appeal for
failure to timely perfect, and thereafter denied his motions to
reinstate as well as the instant petition for a writ of error
coram nobis.    Notwithstanding these facts, the majority concludes
that counsel was not ineffective and that defendant is to blame
for his own dire situation.    I cannot agree.   As we have made
clear, "there is no justification for making the defendant suffer
for his attorney's failing" (People v Montgomery, 24 NY2d 130,
132 [1969]).    Under well established statutory and case law,
Appellate Division rules, and prevailing professional standards
applicable then and now, counsel could not desert his client.
Defendant's coram nobis petition should be granted and his appeal
reinstated.    Therefore, I dissent.


                                 I.
          Defendant was a 22-year-old construction worker with no
criminal history when he was arrested on charges arising from a
fight at a local restaurant, where he had stopped for dinner
after work.    Defendant maintained that he acted in self defense
when a group of seven men surrounded and attacked him, and that
he fought back after one of the men tried to cut him.     After
using a knife to defend himself, defendant felt frightened and
impulsively hid it in the restaurant before waiting for the


                                - 2 -
                                - 3 -                         No. 115

police to arrive.    A jury acquitted defendant of attempted murder
and assault, but convicted him of fourth-degree criminal weapon
possession and tampering with evidence.
           At the sentencing hearing, neither the judge nor
defendant's retained counsel mentioned defendant's appellate
rights.   In rebutting defendant's assertions that he never
received notice of an appeal nor information about his rights,
the People offered only a court clerk's statement from the close
of the proceeding: "Let the record reflect the defendant is being
handed a notice of appeal.   Paperwork to follow."   The record
before us does not contain this notice, only a document the
People assert is the standard notice given to all Queens County
defendants.
           The day after sentencing, counsel filed a notice of
appeal.   Counsel admits he took no further steps to perfect the
appeal and that he has no recollection of any post-sentencing
contact with defendant or defendant's family.   As he explained,
"in [his] view, as retained counsel, [his] representation of
[defendant] ended with the trial, sentencing and filing of the
notice of appeal."   According to counsel, "[i]t was understood
that [he] was trial and not appellate counsel."
           After defendant's release from prison, he was placed in
deportation proceedings based on his conviction.1    The appellate

     1
        Since defendant is a Lawful Permanent Resident, his
conviction constitutes the sole ground for separating him from
his family and removing him from this country.

                                - 3 -
                               - 4 -                          No. 115

indigent defense counsel representing defendant in the
immigration proceeding learned that, approximately four years
earlier, the Appellate Division had granted the People's
unopposed motion to dismiss defendant's appeal for failure to
timely perfect.
          Appellate counsel moved to reinstate the appeal.      The
supporting affidavit from defendant averred that defendant was
unaware of his appellate rights and believed the case finished
when he was released from prison.   It stated that defendant did
not remember receiving any notice of appeal, and that if he had
known he could obtain a public defender he would have requested
one to pursue his appeal.   In appellate counsel's own
affirmation, she described a conversation with defendant's mother
in which the mother stated that she and her husband had paid for
trial defense counsel but exhausted their finances and could not
afford an attorney for an appeal.   The mother also did not
remember counsel mentioning an appeal, and, consequently, she too
believed the conviction was "the end."
          Appellate counsel also submitted a psychologist's
evaluation in which an expert concluded that defendant has severe
cognitive limitations.   The expert explained that defendant's
verbal intellectual functioning is in the "Extremely Low" range,
his nonverbal cognitive functioning in the "Borderline" range,
and that defendant has low, if any, literacy.   The expert
remarked that defendant's impulsive actions in the underlying


                               - 4 -
                                - 5 -                        No. 115

incident -- hiding the weapon while waiting for police -- "would
be consistent with a concrete and simplistic thinking style."2
          The People took no position on the motion to reinstate
the appeal.   Nevertheless, the Appellate Division denied it.
Appellate counsel then made a motion to reconsider "in light of
the substantial rights at stake in this case," noting that
"[defendant] will be deported as a result of a conviction that he
has been unable to appeal through no fault of his own."   The
People opposed defendant's motion to reconsider on the basis that
defendant had "failed to meet his burden of showing that the
Court misapplied relevant law or overlooked relevant facts."3
Again, the Appellate Division denied the motion.
          Appellate counsel subsequently filed a petition for a
writ of error coram nobis in the Appellate Division, alleging
defense counsel was ineffective for failing to protect
defendant's appellate rights.   Counsel argued that defendant had
a fifth-grade education and cognitive limitations, that trial



     2
       The People never refute that defendant has cognitive
limitations, as the majority implies when referring to them as
"purported" limitations (majority op at 5). Moreover, it is
unclear what the majority would hold sufficient evidence of such
a disability for a writ of error coram nobis, if not an
uncontradicted expert opinion (see majority op at 19).
     3
       The People did not go so far as to make conclusions on the
merits of defendant's motion, as the majority here does. Indeed,
the People included a footnote in their affirmation in opposition
to defendant's motion to reargue stating "[a]s before, the People
take no position on defendant's argument on the merits of the
motion that defendant seeks to reargue."

                                - 5 -
                                - 6 -                       No. 115

counsel had done nothing after filing the notice of appeal, and
that defendant's constitutional rights were violated as a result
of trial counsel's failure to take basic steps to ensure
defendant was able to perfect his appeal.    The Appellate Division
denied the petition without opinion (People v Arjune, 138 AD3d
877 [2d Dept 2016]).


                                 II.
           The right to appeal is a fundamental right (Montgomery,
24 NY2d at 132).    Under New York law, every defendant has a
statutory right to a first-tier appeal (People v West, 100 NY2d
23 [2003]).    It is the state's responsibility to "make that
appeal more than a meaningless ritual" (Evitts v Lucey, 469 US
387, 394 [1985]) "by affording a right to counsel on appeal"
(People v Syville, 15 NY3d 391, 397 [2010], citing Evitts, 469 US
at 394).   As this Court explained in People v Syville, "[i]t
follows that '[a] first appeal as of right . . . is not
adjudicated in accord with due process of law if the appellant
does not have the effective assistance of an attorney'" (Syville,
15 NY3d at 397, quoting Evitts, 469 US at 396).    Thus, it also
follows that where counsel's failures have deprived a defendant
of this right to appeal under the normal procedural course,
defendant may seek reinstatement of the appeal by writ of error
coram nobis.




                                - 6 -
                               - 7 -                         No. 115

                               III.
          Counsel's representation is measured against governing
constitutional doctrine, statutory mandates, and basic rules of
criminal practice, all of which aim to protect the client's
appellate rights.   Where, as here, counsel's representation is
deficient for failing to comply with these authorities, counsel
must be deemed ineffective.
                                A.
          In Roe v Flores-Ortega, the United States Supreme Court
stated that where defendant claims counsel was ineffective for
failing to file a notice of appeal, courts must determine
"whether counsel in fact consulted with the defendant about an
appeal" (528 US 470, 478 [2000]).     The Court further expounded
that "consult" means "advising the defendant about the advantages
and disadvantages of taking an appeal, and making a reasonable
effort to discover the defendant's wishes" (id.).     If counsel has
failed to consult with a client, courts must ask whether such
failure "itself constitutes deficient performance" (id.).
          The Court rejected a bright line rule that counsel must
always consult with defendant regarding an appeal, instead
holding that the federal constitution mandates counsel make
objectively reasonable choices, which must be assessed on a case-
by-case basis.   Yet, as the Court unanimously held, only in rare
cases would counsel be effective absent client consultation.
According to the Roe majority, "[c]ourts evaluating the


                               - 7 -
                               - 8 -                        No. 115

reasonableness of counsel's performance . . . will find, in the
vast majority of cases that counsel had a duty to consult with
the defendant about an appeal" (id. at 481), and the four
concurring justices stated counsel "almost always" has this duty
(id. at 488 [Breyer, J., concurring]; id. at 488 [Souter, J.,
concurring in part and dissenting in part, joined by Ginsberg,
J., and Stevens, J.]).
          Further, as stated by the Court, apart from the federal
constitution's mandates, "[s]tates are free to impose whatever
specific rules they see fit to ensure that criminal defendants
are well represented" (id. at 479).    New York has imposed just
such rules.   If defense counsel ignores them, and defendant is
thereby foreclosed from pursuing a direct appeal as of right,
counsel has not complied with either the federal "objectively
reasonable" or New York's less-stringent meaningful
representation requirement.4

     4
       See People v Honghirun, 29 NY3d 284, 289 (2017) ("The
difference between the federal and state standards is that '[o]ur
state standard . . . offers greater protection than the federal
test' because, 'under our State Constitution, even in the absence
of a reasonable probability of a different outcome, inadequacy of
counsel will still warrant reversal whenever a defendant is
deprived of a fair trial'"), quoting People v Caban, 5 NY3d 143,
155–156 [2005]; People v Stultz, 2 NY3d 277, 283–84 (2004) ("From
time to time, we have referred to the Strickland standard and
measured counsel's performance under it, but we have never
applied it with such stringency as to require a defendant to show
that, but for counsel's ineffectiveness, the outcome would
probably have been different."); People v Benevento, 91 NY2d 708,
714 (1998) (New York's claim of ineffectiveness is "ultimately
concerned with the fairness of the process as a whole rather than
its particular impact on the outcome of the case."); People v

                               - 8 -
                               - 9 -                         No. 115

                                B.
           New York's four Appellate Division Departments have
longstanding rules that "it shall be the duty of the counsel for
the defendant, immediately after the pronouncement of sentence,"
to advise defendant in writing of the right to appeal, the time
limitations involved, how to institute an appeal and obtain a
transcript of trial testimony, and of the right to poor person
relief (22 NYCRR 671.3[A]; West, 100 NY2d at 26 ["the Appellate
Divisions in 1964 promulgated rules that require assigned or
retained counsel 'immediately after the pronouncement of
sentence' to advise a defendant in writing of the right to appeal
and the time limitations involved"] [citations omitted]).
           The Second Department, the court that denied defendant
coram nobis relief, requires "written notice to [the] client
advising [the client] of the right to appeal," which shall "also
set forth . . . the appellant's right upon proof of [the
client's] financial inability" to apply for "the following
relief": "the assignment of counsel," "leave to prosecute the
appeal as a poor person and to dispense with printing," and a
copy of the trial transcript without charge" (22 NYCRR 671.3 [b]
[3]).   In addition, "counsel shall also request the written
instructions of [the] client," and upon written notice of a
desire to appeal or to apply for poor person relief, "counsel



Baldi, 54 NY2d 137 (1981).


                               - 9 -
                               - 10 -                          No. 115

shall proceed promptly to do so" (22 NYCRR 671.3 [b] [4]).       The
Second Department is not alone in requiring that counsel ensure a
client's indigency is no barrier to pursuing an appeal.    The
Fourth Department also mandates that counsel submit the
application for poor person relief upon the client's request (22
NYCRR 1015.7 [A]).5
            The majority ignores the significance of counsel's
violation of these rules, minimizing the Division Department
standards as a basis for measuring the quality of counsel's
representation.    Rather than deny that the conduct here is
deficient, we should recognize that defendant has been denied
meaningful representation as a direct result of counsel's
inaction.    Apart from the injustice suffered by defendant, the
holding here risks disincentivizing compliance with the rules.
Instead, we should be conveying their centrality to criminal
legal practice.
                                 C.
            In addition to considering rules promulgated by the
states, the Supreme Court looks to "the legal profession's
maintenance of standards sufficient to justify the law's
presumption that counsel will fulfill the role in the adversary


5
  The other Appellate Division Departments are even more
protective: counsel's duty to file the notice of appeal is not
conditioned on a written request (see 22 NYCRR 606.5 [First
Department]; 821.2 [Third Department]; 1015.7 [Fourth
Department]).

                               - 10 -
                              - 11 -                         No. 115

process that the [Sixth] Amendment envisions," since the
Amendment "refers simply to 'counsel,' [without] specifying [the]
particular requirements of effective assistance" (Strickland v
Washington, 466 US 668, 688 [1984]).    Promoted by the bodies
charged with supervising the practice of law, professional
standards seek to lessen the institutional and structural
obstacles that prevent defendants who want to appeal their
criminal convictions from doing so.    As relevant here, these
standards address a "representation gap" between when the notice
of appeal is filed and when the appeal is perfected.    As the ABA
commentary explains, "[t]his is a critical stage in a criminal
prosecution, and no defendant should lack legal counsel during
this period" (ABA Standards for Criminal Justice, Standard 21-2.2
[a]).   Furthermore, "[the ABA] standard, in stressing the
continuing responsibility of the trial attorney, seeks to avoid
the problem of a hiatus in legal representation during a critical
period" (id.).
           The relevant New York State Bar Association standards
state that "representation at the trial court stage means, at a
minimum," not only "advising the client of the right to seek
appointment of counsel and a free copy of the transcript" but
also "applying for appointment of counsel and a free copy of the
transcript if the client requests" (NY St. Bar Assn, Revised
Standards for Providing Mandated Representation, I-7 [j] [iv]
[2015]).   The National Legal Aid and Defender Association


                              - 11 -
                             - 12 -                          No. 115

similarly instructs trial counsel to "inform the defendant of
[the] right to appeal," and "the action that must be taken to
perfect an appeal" (Performance Guidelines for Criminal Defense
Representation, Guideline 9.2 [ab] [2011]).   If the defendant
wants to file an appeal but is unable to do so without the
assistance of counsel, the attorney should file the notice and
"take such other steps as are necessary to preserve the
defendant's right to appeal" (id.).
          The American Bar Association makes clear that counsel
cannot simply walk away from a client.   Its standards specify
that trial counsel should explain the "meaning and consequences
of the court's judgment and defendant's right of appeal," and
"take whatever steps are necessary to protect the defendant's
right to appeal" (ABA Defense Function 4-8.2 [b] [1993]).
Counsel must also "continue to represent a sentenced defendant
until a decision has been made whether to appeal and, if an
appeal is instituted, to serve the defendant at least until new
counsel is substituted," unless the court allows counsel to
withdraw (ABA Standards for Criminal Justice, Criminal Appeals,
Transition from Trial Court to Appellate Court, Standard 21-2.2
[a] [1978]).
          The majority cites to Roe for the proposition that
professional standards are mere guides that the Supreme Court
meant to have limited relevance when analyzing whether defense
counsel was ineffective (majority op at 11 n 5).   This


                             - 12 -
                               - 13 -                          No. 115

interpretation of Roe is incorrect.     The Supreme Court's
reference to the ABA standards in that case as guides must be
understood in context.    While the Court did not render its
holding based on ABA standards, it went on to conclude that it
would be the rare case in which counsel's constitutional duty
could be met absent compliance with those very same standards.
          The majority's misplaced focus on "guides" also takes
that word out of context in light of other Supreme Court
precedent.    The Supreme Court has continuously treated
professional standards as essential to the Court's effective
assistance analysis.    In Strickland, the Court held that "[t]he
proper measure of attorney performance remains simply
reasonableness under prevailing professional norms" (466 US at
688 [internal citation omitted]).    In Padilla v Kentucky, the
Supreme Court held that "[t]he first prong [of an ineffective
assistance of counsel analysis] -- constitutional deficiency --
is necessarily linked to the legal community's practice and
expectations" (55 US 356, 366 [2010]).     Citing rules promulgated
by the National Legal Aid and Defender Association, the
Department of Justice, and the American Bar Association, the
Court held:
     "These standards may be valuable measures of the
     prevailing professional norms of effective
     representation, especially as these standards have been
     adapted to deal with the intersection of modern
     criminal prosecutions and immigration law. The weight
     of prevailing professional norms supports the view that
     counsel must advise her client regarding the risk of
     deportation" (Padilla, 559 US at 367–368; see also

                               - 13 -
                               - 14 -                         No. 115

     Chaidez v United States, 568 US 342, 352 [2013] ["a
     court begins by evaluating the reasonableness of an
     attorney's conduct in light of professional norms"]).

In New York, we similarly ask whether "attorney's conduct
f[a]ll[s] below established professional norms" (Baret, 23 NY3d
777, 783 [2015]).    Thus, when evaluating an attorney's
representation, professional norms are at the center of the
analysis.    Roe is not to the contrary, as the majority implies,
nor establishes that counsel here was other than ineffective.


                                 IV.
            In the case before us, counsel was ineffective and
failed to provide meaningful representation to defendant,
resulting in the loss of defendant's only appeal as of right.
His representation fell below the federal standard discussed in
Roe, as he did not make "objectively reasonable choices" related
to defendant's appellate rights (Roe, 528 US at 479).      Counsel
failed to consult with defendant after sentencing about the right
to appeal, and certainly did not "mak[e] a reasonable effort to
discover the defendant's wishes" (id. at 478), since he had no
contact with defendant or his family.
            Counsel also violated his state-based duty when he
broke the relevant Division Department rules.    We have held that
lack of compliance with Department rules that deprives a
defendant of appellate counsel constitutes per se ineffective
assistance of trial counsel (see People v Brun, 15 NY3d 875

                               - 14 -
                              - 15 -                         No. 115

[2010] [defendant entitled to coram nobis relief where trial
counsel failed to comply with Second Department's rule, thereby
denying defendant representation upon People's appeal]; see also
People v Zanghi, 159 AD2d 1030 [4th Dept 1990] [holding that,
where a defendant claimed lack of oral consultation with counsel
regarding right to appeal, the court "need not determine the
truth of defendant's allegations because counsel failed to comply
with our rule (22 NYCRR) 1022.11 (a)" to inform defendants of
appellate rights in writing: "we remind counsel of the obligation
under that rule"]).
          The People imply that counsel may have consulted with
defendant before sentencing, and the majority claims that
counsel's "carefully worded" affirmation should be read as
confirmation that there was consultation (majority op at 15).
The affirmation, however, is revealing more for what it omits
than for what it includes, and does not support an inference of
effective representation.   This "carefully worded" document says
nothing about whether counsel's usual practice includes informing
defendants about their right to appeal or how to request
appellate indigent representation.     While the People's motion to
dismiss defendant's appeal and the court's order granting that
motion were both sent to counsel's business address, counsel
states he has no recollection of receiving the motion to dismiss
the appeal and "carefully" makes no mention of whether he
received the order.   It is clear that he did not respond to


                              - 15 -
                               - 16 -                       No. 115

either, nor even took action to inform defendant or confirm that
defendant had chosen not to pursue an appeal.6
            Additionally, the majority argues that a sentencing
court's instructions may be "so clear and informative as to
substitute for a counsel's duty to consult," and in some cases
"counsel might then reasonably decide that he need not repeat
that information" (majority op at 10, citing Roe, 528 US at
479-480).    Nevertheless, the burden is on counsel, not the court,
to ensure that defendant thoroughly understands the right to
appeal and how to pursue it.    While counsel may account for
court-given information when analyzing what additional
instruction defendants need, the responsibility of getting a
defendant to that crucial state of understanding remains at all
times with the lawyer.    After all, unlike the court, counsel has


     6
       The majority asserts that I have ignored that defendant
bears a heavy burden to establish counsel denied him meaningful
assistance (majority op at 8). Notwithstanding the majority's
claim, it is obvious from my references to the applicable legal
mandates, and to the defendant's submissions in support of his
petition for coram nobis relief, that my disagreement is not a
difference of opinion as to the burden of production or proof.
My disagreement is what to make of the record before us. Unlike
the majority I do not consider defendant's claims "perfunctory"
(majority op at 14). Defendant does not rely solely on his own
unsupported statements that his attorney failed him. Instead, he
establishes by his counsel's own admissions that counsel did
nothing other than file a notice of appeal and that he did not do
more because he was not appellate counsel. Moreover, counsel has
never asserted that he fulfilled his duties under the Appellate
Division rules. This is powerful evidence in support of
defendant's petition. If counsel's admission of his own failures
is not enough, then no defendant, with or without cognitive
limitations, can meet the standard adopted by the majority.

                               - 16 -
                              - 17 -                         No. 115

the ability to discuss candidly defendant's options regarding an
appeal.
          "There is no substitute for the single-minded advocacy
of appellate counsel" (People v Emmett, 25 NY2d 354, 356 [1969]
[holding unacceptable an appellate tribunal reviewing a case
without waiting for defense counsel to "make his own appraisal of
that record or to submit a brief"]).   Courts and defense counsel
have different roles and relationships with defendants.    While
courts purport neutrality, defense counsel's purpose is to
advocate, a task that encompasses a wide array of
responsibilities with the duty of loyalty at their core.    Neither
instructions from the court nor a standard form could supplant
the trust and dependence inherent in such a relationship.
          Here, the court did not discuss the right to appeal
with defendant, and thus there was no information for counsel to
build upon when ensuring defendant thoroughly understood his
rights.   The People and the majority rely on the form provided by
the court clerk at the end of sentencing, but that document is
not in the record and thus we cannot confirm its contents.
Assuming the People's submission to this Court represents the
form handed to defendant at the end of the original sentencing
proceeding, it was wholly inadequate to advise him of his right
to appeal.
          For instructions regarding appeals and poor person
relief, our case law has recognized the utility of notices --


                              - 17 -
                              - 18 -                       No. 115

oral or written -- providing clear, robust guidance, along with
"ample notice" of rights (West, 100 NY2d at 28).   In West, where
we upheld a form as providing adequate notice, the form
instructed defendants to write to the Appellate Division
requesting assigned counsel and described what a defendant must
include in that letter.   The notice given to defendants in West
states:
     "If you are without funds, after the notice of appeal
     has been filed, you must write to the Appellate
     Division requesting that counsel be assigned to you for
     the purpose of appeal. Send this letter to the
     Appellate Division, First Department, 27 Madison
     Avenue, New York, New York 10010. . . [R]equest that
     you be granted permission to appeal upon the original
     record. You should mention you are without funds with
     which to retain counsel or to purchase a transcript of
     the proceedings. State fully your financial
     circumstances, explaining why you cannot afford to hire
     an attorney for an appeal or purchase a transcript of
     the proceedings. You must write this letter yourself"
     (id. at 28).7

In contrast, the standard notice the People rely on here lacks
the clarity of the notice cited in West. The form simply states:
     "You have a right to appeal to the Appellate Division,
     Second Department, within thirty (30) days and, in
     addition, upon proof of your financial inability to
     retain counsel and to pay the cost and expenses of the
     appeal, you have the right to apply to the Appellate
     Division, Second Department, for the assignment of


     7
        Notwithstanding the court's approval of the notice in
West, reliance on that notice to educate defendants on their
appellate rights may place such a burden on the exercise of those
rights as to be unconstitutional. Such would be the case here,
as a written notice handed over at sentencing without counsel's
guidance would be of little use to defendant who is barely
literate.

                              - 18 -
                               - 19 -                       No. 115

     counsel and for leave to prosecute the appeal as a poor
     person and to dispense with printing.
     The Appellate Division, Second Department, is located
     at 25 Monroe place, Brooklyn, New York 11201."

This notice neither informs defendant of how to establish proof
of financial inability nor how to retain counsel or obtain a
transcript utilizing poor person relief.


                                 V.
             It is noteworthy that the National Association of
Criminal Defense Lawyers (NACDL), the nationwide professional bar
association for public defenders and private criminal defense
lawyers, submitted a brief in this case advocating for a rule by
which "a lawyer who will not perfect the appeal. . . must advise
[the] client about how to obtain appellate counsel to do so and
assist [the] client in preparing the necessary papers" (NACDL
amic at 22).    As the NACDL argues, "[t]o do otherwise presents an
egregious risk to criminal defendants' fundamental right to
counsel in their appeals as of right and undermines exactly what
the ABA Standards are designed to prevent -- 'a hiatus in legal
representation during a critical period'" (id. [citation
omitted]).   Such a rule would provide "criminal defense
attorneys, prosecutors, and judges with a precise guidepost to
determine the point at which the duties of counsel end" (id. at
24-25) and would place a "minimal burden on criminal defense
attorneys," since "[for lawyers] experienced with the criminal


                               - 19 -
                             - 20 -                         No. 115

justice system, providing advice about these subjects and
preparing the necessary papers is easily and quickly
accomplished" (id. at 23).
          On the other hand, the approach adopted by the majority
today:
     "place[s] an immense burden on defendants, especially
     uneducated, non-English-speaking defendants, who must
     (i) come to understand the right to appellate counsel,
     (ii) then understand that to receive appellate counsel
     requires papers demonstrating one's indigence and
     requesting the appointment of counsel, and (iii) then
     prepare such papers despite potential deficiencies in
     language and legal knowledge" (id. at 23-24).

Defendant's case evidences this point, and highlights the
vulnerability of many who find themselves in such a position.
Defendant was a novice to the criminal justice system: this was
his first and remains his only criminal offense.   In addition, he
has a fifth-grade education, a cognitive impairment, and is
barely literate.8
           Unsurprisingly, other jurisdictions, both state and
federal, have instituted protections similar to those of the ABA.
"[M]ost of the [federal] courts of appeals require counsel who
represented a defendant at trial to continue representation after
the defendant is convicted, unless relieved by order of the court

     8
       The Court has previously noted that those familiar with
the system are less well placed to claim ignorance of the rules
and procedures than those who have never navigated its
intricacies (West, 100 NY2d at 27 [in which "(w)hile doing
nothing in state court to pursue his appeal, defendant repeatedly
attempted to bypass the state appellate process by filing
petitions seeking federal habeas corpus relief"]).

                             - 20 -
                                - 21 -                        No. 115

of appeals" (L. Griffin, 1 Federal Criminal Appeals § 1:18 [Mar
2017]).9   A rule that ensures seamless representation from
conviction to resolution of defendant's first-tier appeal as of
right does not, as the majority claims, demand that trial counsel
be responsible for an "indefinite period" after filing the notice
of appeal (majority op at 9).    To the contrary, the rule assures
the transition between trial and appeal progresses efficiently,
effectively, and expeditiously.
           In contrast, the majority's holding widens the gap in
representation and increases the chances of a defendant's loss of
the right to appeal.   The majority's approach also runs counter
to sister federal and state jurisdictions, and the overwhelming
consensus of the profession that criminal defendants and the
justice system are best served by ensuring representation
throughout the criminal appellate process.   Other jurisdictions


     9
       (See 2d Cir. R. 4.1 [a] ["When a defendant in a criminal
case seeks to appeal, defendant's counsel, whether retained or
appointed, is responsible for representing the defendant unless
relieved by this court."]; 6th Cir. R. 12 [c] [1] ["Trial counsel
in criminal cases must continue representation of the defendant
on appeal unless relieved by the court."]; 8th Cir. R. 27 [b] [a]
["Defendant's trial counsel, whether retained or appointed, shall
represent the defendant on appeal, unless the Court of Appeals
grants permission to withdraw."]; 10th Cir. R. 46.3 [A] ["Trial
counsel must continue to represent the defendant until either the
time for appeal has elapsed and no appeal has been taken or this
court has relieved counsel of that duty."]; 11th Cir. Add. IV [d]
[2] ["If a party was represented in the district court by counsel
appointed under the Act, such counsel shall be mindful of the
obligation and responsibility to continue representation on
appeal until either successor counsel is appointed under the Act
or counsel is relieved by order of this court."]).

                                - 21 -
                                - 22 -                        No. 115

have found this type of rule workable, and, as discussed, the
NACDL, whose members will be held to this high standard,
champions the duty be imposed on defense counsel.      The majority's
decision today is an unfortunate step in the wrong direction.


                                 VI.
          The applicable legal standards forbid counsel from
creating a gap in representation.      Attorneys may not abandon
defendants to navigate the criminal justice system alone without
first and foremost ensuring that they understand their appellate
rights and the steps necessary to exercise them, and, where
necessary, assisting them in perfecting their appeals by
obtaining substitute counsel.    This rule ensures seamless
representation from conviction to resolution of defendant's
first-tier appeal as of right.
          Here, counsel failed to provide meaningful
representation.   I would reverse and grant defendant's petition
for a writ of error coram nobis, and remit to the Appellate
Division so that defendant may pursue his appeal represented by
competent appellate counsel.




                                - 22 -
People v Arjune
No. 115




WILSON, J.(dissenting):
            I join Judge Rivera's dissent but write separately to
emphasize that the majority's decision violates Roe v
Flores-Ortega (528 US 470, 483 [2000]).   As in that case,
"[t]oday's case is unusual in that counsel's alleged deficient
performance arguably led not to a judicial proceeding of disputed
reliability, but rather to the forfeiture of a proceeding itself"
(id. at 483).
            Criminal defendants have a Sixth Amendment right to
"consult" with their attorney "when there is reason to think
. . . that a rational defendant would want to appeal" (id. at
480).    The Supreme Court "employ[ed] the term 'consult' to convey
a specific meaning -- advising the defendant about the advantages
and disadvantages of taking an appeal, and making a reasonable
effort to discover the defendant's wishes" (id. at 478).     The
Flores-Ortega majority expected that "courts evaluating the
reasonableness of counsel's performance using the inquiry we have
described will find, in the vast majority of cases, that counsel
had a duty to consult with the defendant about an appeal (id. at
481 [emphasis added]).1

     1
       The concurring justices preferred a still more stringent
inquiry, but agreed attorneys must "almost always" consult with
their clients and can "hardly ever" leave a defendant uncounseled

                                - 1 -
                               - 2 -                         No. 115

          Mr. Arjune's case is among that vast majority.   Mr.
Arjune, a lawful permanent resident with cognitive impairments
who defended himself against a group of attackers with a sheet
rock knife that he carried for work, made the mistake of hiding
the knife in fright.   The day after his conviction, his trial
counsel filed a notice of appeal and then walked away from all
further obligation to or communication with Mr. Arjune.    When he,
and not Mr. Arjune, received in the mail the People's motion to
dismiss the appeal for failure to timely perfect, he made no
attempt even to contact Mr. Arjune or Mr. Arjune's parents, who
had paid for his trial representation of their son.   His actions
left Mr. Arjune ignorant of his appellate rights and bereft of
meaningful counsel.
          Even if we assume that Mr. Arjune was handed a
court-issued form notice of appeal, with "paperwork to follow,"
Flores-Ortega contemplated and rejected such a scenario as
insufficient to avoid constitutional violation.   The Supreme
Court considered a circumstance in which "a sentencing court's
instructions to a defendant about his appeal rights in a
particular case are so clear and informative as to substitute for
counsel's duty to consult.   In some cases, counsel might then
reasonably decide that he need not repeat that information" (id.
at 479-80).   That hypothetical situation differs materially from



about his appeal rights (Flores-Ortega, 528 US at 488 [Breyer,
J., concurring] ; id. at 492 [Ginsburg, J., concurring]).

                               - 2 -
                                    - 3 -                           No. 115

the one before us.      Leaving aside that Mr. Arjune does not recall
receiving the written notice, that the notice he may have
received is not in the record, and that he is borderline
illiterate (which his trial counsel surely knew), the sample of
the type of form the People say he likely received is not
remotely sufficient "to substitute for counsel's duty to consult"
(id.).    Remember, "consult" means "advising the defendant about
the advantages and disadvantages of taking an appeal"; no one
contends the standard form does so.          Flores-Ortega's example,
coupled with its holding, strongly suggests the Supreme Court of
the United States would have unanimously reinstated Mr. Arjune's
appeal.
              In short, at the conclusion of his trial, Mr. Arjune
was denied the protections of the constitution.          Today, he --
like all other defendants whose trial counsel believe that they
may leave their clients unadvised and unrepresented in
considering whether, when, and how to appeal -- is denied them
again by this Court despite the imperatives of justice and the
dictates of the Supreme Court.
*   *     *     *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order affirmed. Opinion by Judge Stein. Chief Judge DiFiore and
Judges Fahey, Garcia and Feinman concur. Judge Rivera dissents
in an opinion, in which Judge Wilson concurs in a separate
dissenting opinion.

Decided November 20, 2017




                                    - 3 -
