| People v Forsythe |
| 2013 NY Slip Op 02929 [105 AD3d 1430] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMarvin Forsythe, Appellant. |
—[*1] Marvin Forsythe, defendant-appellant pro se. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe 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 toCPL 440.10.
It is hereby ordered that said appeal is unanimously converted to a motion for a writof error coram nobis, the motion is granted in accordance with the followingmemorandum and the matter is remitted to Oneida County Court for proceedingspursuant to CPL 470.45: After defendant was charged with criminal possession of acontrolled substance in the first degree (Penal Law § 220.21 [1]) and criminalpossession of a controlled substance in the third degree (§ 220.16 [1]), CountyCourt granted that part of defendant's motion to dismiss the indictment charging himwith those crimes. The People appealed, and we reversed the order and reinstated theindictment (People vForsythe, 20 AD3d 936 [2005]). Defendant had been represented by retainedcounsel during the proceedings in County Court, and the People's notice of appeal wasserved on defense counsel. Defense counsel sent a letter to the People requesting thegrand jury minutes, but she did not file a brief in opposition to the People's appeal beforethis Court, nor does the record reflect that she otherwise made any appearance before thisCourt.
After we reinstated the indictment, defendant was convicted upon a jury verdict ofattempted criminal possession of a controlled substance in the first degree (Penal Law§§ 110.00, 220.21 [1]) and attempted criminal possession of a controlledsubstance in the third degree (§§ 110.00, 220.16 [1]). Defendant appealed,and we affirmed (People vForsythe, 59 AD3d 1121 [2009], lv denied 12 NY3d 816 [2009]). Afterwe denied defendant's motion for a writ of error coram nobis (People v Forsythe, 46 AD3d1476 [2007], lv denied 10 NY3d 934 [2008]), defendant moved to vacatethe judgment pursuant to CPL 440.10 on the ground that he was denied his right tocounsel or his right to effective assistance of counsel on the People's interlocutory appealfrom the order in Forsythe (20 AD3d 936). The court denied the motion, and wegranted defendant permission to appeal.
A claim of ineffective assistance of appellate counsel must be raised in an errorcoram nobis proceeding (see People v Bachert, 69 NY2d 593, 595-596 [1987];People v Smith, 78 AD3d1583, [*2]1584 [2010]). We convert defendant'sappeal from the order denying his CPL 440.10 motion to a motion for a writ of errorcoram nobis (see People v Angulo, 140 AD2d 209 [1988], lv dismissed72 NY2d 855 [1988]), and we grant the motion.
"It is well settled that criminal defendants are entitled under both the Federal andState Constitutions to effective assistance of appellate counsel" (People v Borrell, 12 NY3d365, 368 [2009]). In addition, "defendants have important interests at stake on aPeople's appeal" (People v Ramos, 85 NY2d 678, 684 [1995]). "Given theconsequences of a reversal and the possible resumption of criminal proceedings, thedefendant certainly has an interest in being informed that the People's appeal is pendingand continuing" (id. at 684-685). "Moreover, . . . other rightsrequiring protection upon the People's appeal include the right to appellate counsel of thedefendant's own choice, the right to appear [pro se] on the appeal, and the right to seekappointment of counsel upon proof of indigency" (id. at 685). However, dueprocess does not require that a defendant be personally served with the People's appellatebriefs (see id. at 681).
There is no showing on this record that the court upon dismissing the indictmentcomplied with 22 NYCRR 200.40 (a) (1) through (3) by advising defendant that thePeople had the right to take an appeal; that defendant had the right to counsel on theappeal or to appear pro se; and that defendant had the right to assigned counsel on theappeal if he was financially unable to retain counsel (see Matter of Donovan v Pesce, 73 AD3d 137, 138 [2010],lv denied 15 NY3d 702 [2010]). Nor is there any showing that the People ordefense counsel advised defendant of those rights. The record establishes that the courtissued its ruling dismissing the indictment to the prosecutor and defense counsel on April6, 2005, and that the People filed their notice of appeal on April 7, 2005. According todefendant, defense counsel visited him in jail before the People filed their notice ofappeal 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 averredthat 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—courtappointed or retained—[or] the right to proceed pro se" on the appeal.
Moreover, this Court failed to ascertain whether defendant was represented or hadwaived counsel on the People's appeal (see People v Garcia, 93 NY2d 42, 44[1999]). "When it was discerned that defendant was unrepresented on appeal, absentrecord evidence that defendant was informed of his right to counsel and that he waivedthat right, [this] Court should not have proceeded to consider and decide the People'sappeal" (id. at 46). The People contend that Garcia is distinguishablefrom this case because here it appeared to the People that defendant was represented bycounsel, inasmuch as defense counsel informed the People that she had received thePeople's brief and requested the grand jury minutes. However, as previously noted, ourrecords do not reflect that defense counsel made any appearance on behalf of defendanton the People's appeal. In addition, there is no showing that defendant was informed ofhis right to representation on the appeal or to appear pro se.
Therefore, the orders of this Court entered July 1, 2005 (Forsythe, 20 AD3d936) and February 11, 2009 (Forsythe, 59 AD3d 1121) are vacated, the judgmentof conviction is vacated, and this Court will consider the People's appeal de novo. ThePeople shall perfect the appeal on or before July 25, 2013. Present—Scudder, P.J.,Smith, Centra, Carni and Sconiers, JJ.