Ron Summers, appearing pro se, moves the Court pursuant to CPL 440.10 (1)(h) on the basis that the judgment of the Court was “obtained in violation of a right of the defendant under the Constitution of this State or of the United States,” and an order for a hearing to be conducted, wherein he shall be produced.For the reasons stated below the motion is denied.FINDINGS OF FACTThis case arises out of a 1986 indictment which charged Mr. Summers with robbery in the first degree and criminal possession of stolen property in the third degree. Mr. Summers was tried by Judge Stadtmauer after waiver of a jury. Trial counsel secured an acquittal on the top count of the indictment. The defendant was found guilty of robbery in the second degree and criminal possession of stolen property in the third degree. He was sentenced by that court on May 14, 1987, to an indeterminate term of from four to eight years incarceration.On or about July 2007, defendant, pro se, moved pursuant to CPL 440.10 to vacate the conviction on the basis that the court was without jurisdiction and more significantly, raising the same claim there as he now does again here, a claim that trial counsel never filed a Notice of Appeal from the conviction and thus was constitutionally ineffective. In response to that application, on April 24, 2008, Judge Stadtmauer denied the claims without holding a hearing.Mr. Summers only refers obliquely to the prior application when he stated that the District Attorney in 2007 provided him with a copy of the Notice of Appeal dated May 2007. He maintains that the issue is that he personally never received a copy of his Notice of Appeal and that therefore he was not informed of his right to appeal. His counsel, in a handwritten letter dated June 21, 2018, stated that he had no recollection of the case. Counsel did state that his regular practice was to personally file notices of appeal but admits it is possible that he failed to serve and file the Notice of Appeal.The evidence is in fact that Mr. Dudley did indeed serve and file the requisite Notice of Appeal. Subsequent investigation by the Bronx District Attorney’s office revealed that there were two copies of the Notice of Appeal filed with the Bronx County Supreme Court clerk’s office on June 15, 1987. The Notice of Appeal contains the name of the defendant in care of counsel, Mr. Dudley, indicating Mr. Dudley’s continuing representation and no indication of need for poor person’s relief. Given Mr. Dudley’s lack of recollection, his letter, not under oath, is not reliable as to the circumstances of the defendant’s claim.Mr. Summers application is also silent as regards to the facts of notice of the right to appeal, the information as to availability of poor person relief and the relevant rights tied to the right to, and the perfecting of, an appeal. His application suggests that he was not so advised. Assuming that he would in fact have prosecuted an appeal from a bench trial, defendant provides no indication of what if any appellate issue was available to be raised or upon what basis he would thus appeal.The defendant did not contact his trial counsel until 2018. There is no record of his ever contacting the Appellate Division First Department or the Supreme Court prior to the 2007 CPL 440 motion. No motion was ever made under CPL 460.30 for a late Notice of Appeal to be filed. Defendant argues no cogitative limitations, and alleges no interference with his ability to pursue the status of the appeal. There is no evidence that he sought to contact trial counsel prior to June of 2018. Fundamentally the defendant, having waited first from 1987 to 2007, and then again from 2007 to 2018 for his appeal to be perfected, without contacting the Appellate Division First Department or the Supreme Court, has literally lay in wait to assert these crucial rights. Further casting doubt on the merits of his application, no motion was ever made under CPL 460.30 for a late Notice of Appeal to be filed.The District Attorney attempted to explain the defendant’s sudden renewed interest in this thirty year old conviction by the fact that the defendant in another matter was sentenced as a persistent violent felony offender in absentia to an indeterminate sentence of imprisonment of 25 years to life. The District Attorney stated that the defendant did not challenge the underlying convictions. The defendant claims he did by objecting in absentia to the prior convictions. It is of no moment to this matter, except to show that the vacatur of one of the underlying felonies would allow further challenges to the persistent violent felony offender adjudication.The presumption of regularity demands that Mr. Summers demonstrate that he was in fact deprived of notice. As early as 1971, the Rules of the Appellate Division First Department provided as follows:§606.5. Duties of Counsel with respect to representation of defendants in criminal actions. (a) Duties of assigned or retained counsel. (1) It shall be the duty of counsel assigned to or retained for the defense of a defendant in a criminal action or proceeding to represent defendant in the trial court until the action or proceeding has been terminated in that court, and to comply with the provisions of paragraph (b)(1)…of this section, after which the duties of assigned counsel shall be ended…. (b) Notification of right to appeal….Where there has been a conviction after trial or otherwise,… it shall be the duty of counsel, retained or assigned,…to advise the defendant…in writing of his right to appeal…the time limitations involved, in the manner of instituting an appeal and of obtaining a transcript of the testimony, and of the right of a person who… is unable to pay the cost of an appeal to apply for leave to appeal as a poor person. It shall also be the duty of such counsel to ascertain whether defendant…wishes to appeal…and, if so, to serve and file the necessary notice of appeal….”(22 NYCRR 606.5.)There is no reason to believe that Mr. Dudley did not follow the rules of the Appellate Division then in place. Mr. Summers credibility as to events is adversely affected by the fact that he initially claimed that there was no Notice of Appeal filed and when faced with the actual notice claimed that it was fully served. This, coupled with the decade silences punctuated by CPL 440.10 claims that were belied by the facts, undermine any contention that the usual procedures were skipped in his case or that his counsel violated the First Department rules. Consistent with the rules, it may be properly and reasonably inferred that Mr. Summers at the sentencing was advised of the right to appeal and the right to prosecute the appeal as a poor person.Based on the evidence that a Notice of Appeal was properly filed by Mr. Dudley on behalf of the defendant, and upon the filings of Mr. Summers and those of the District Attorney and the law the application is denied in its entirety.DISCUSSIONCPL 440.10(1)(h) allows a defendant to move to vacate where the judgment was obtained in violation of a defendant’s state or federal constitutional right. Subdivision (1)(h) imposes no time limitation in bringing the motion and is applicable to judgments obtained both through guilty pleas and upon verdict in a trial. This provision is the basis for the commonplace claim that the conviction was obtained due to ineffective assistance of counsel in violation of the federal and state constitutions.In this instance the Notice of Appeal was filed. In essence, Mr. Summer’s claims are that he was not notified of the filing of the Notice of Appeal or of his right to be advised of his right to proceed as a poor person so as to perfect the appeal.The defendant’s application is barred by law. The Court of Appeals has held 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. West, 100 NY2d 23, 28 (2003). The West Court rejected the claim that the 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, Id. at 28), obviating Mr. Summers claim on the law.The motion should be denied based on the face of the application without any need for a hearing. 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.Mr. Summers failed to set forth a reason for delaying filing his CPL 440.10 (3) (b). In this case, 32 years after the Notice of Appeal was filed and served, the defendant now moves to prosecute his appeal after two decade long silences claiming that he was denied the effective assistance of counsel in perfecting his appeal. The motion is denied because the issue raised upon the motion was previously determined on the merits upon a prior motion or proceeding brought by defendant and denied by Justice Stadtmauer.The motion is also further denied on the basis that on his previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so. Due diligence in uncovering an error is required, and any unjustifiable delay is inexcusable (see CPL 440.10[3]). The only evidence proffered by Mr. Summers in support of his contention is his self serving affidavit, contradicted by other documents and Mr. Dudley’s letter contradicted by the very Notice of Appeal in issue’s existence and proper filing. People v. Rosario, 26 NY 3d 597, 603 (2015). Moreover, Mr. Summers made no showing that he took any step toward discovering the omission of the perfection of the appeal or the application for relief as a poor person or explain the passage decades before he sought relief. Id. at 604. Defendant also has not shown that it was impossible to discover the alleged deficiency with reasonable diligence.A defendant is required to demonstrate what steps he took to discover the omission and explain why he waited years to obtain coram nobis relief. Rosario, 26 NY3d at 603 — 604. Mr. Summers has not even attempted to make such a showing, apart from his unsupported claim that he was not aware of his right to appeal. Mr. Summers makes no showing that he took steps to discover the fate of his appeal, or even steps toward discovering the omission of a poor person’s relief application. There is no explanation why he now claims a failure as to the appellate process while he has been silent for a decade. 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 [this defendant] did not simply neglect [his] appellate rights, but consciously chose not to exercise them until [he] acquired a reason to do so.” People v. Perez, 23 NY3d 89, 101 (2014).Given the passage of time, the application should and must be treated as an application for a writ of error coram nobis. The writ is a procedure available when the claim is made that the right of appeal was lost as a consequence of counsel’s constitutionally deficient performance.In People v. Syville, 15 NY3d 391 (2010), the Court held that in rare circumstances coram nobis is the appropriate procedural remedy in New York to afford relief for a violation of the Due Process Clause of the United States Constitution resulting from the deprivation of a first-tier appeal due to counsel’s ineffectiveness in failing to file a Notice of Appeal within the one-year time limitation of CPL 460.30. Where the Notice of Appeal was properly filed, a writ coram nobis does not lie. People v. Arjune, 30 NY3d 347 (2017).Because Mr. Summers has shown not the slightest interest, no less due diligence, his application is precluded. The Court of Appeals in Arjune specifically declined to expand the rights of applicants under CPL 440 to situations where counsel filed a timely Notice of Appeal but allegedly failed to advise the defendant of his or her right to poor person relief. In Arjune the Court held that there is no Sixth Amendment right to counsel to apply for poor person relief because eligibility would be within the knowledge of the defendant. Here, whether or not counsel provided the defendant with written notice of his appellate rights, it is clear that trial counsel did properly file the Notice of Appeal. It was for Mr. Summers to pursue his right to appellate counsel. “[I]t is not unconstitutional to require a defendant to take some minimal initiative to assure himself adequate representation on appeal.” Perez, 23 NY3d at 100.Inasmuch as defendant’s papers were insufficient on their face to meet his factual burden on this coram nobis application, and the relief he seeks is precluded by the Court of Appeals in Arjune, the motion is denied in all respects.This constitutes the decision and order of the Court.Dated: January 29, 2019
