| People v Varenga |
| 2015 NY Slip Op 09312 [26 NY3d 529] |
| December 17, 2015 |
| Fahey, J. |
| Court of Appeals |
| As corrected through Wednesday, March 2, 2016 |
[*1]
| The People of the State of New York,Appellant, v Natanael Sagastumeal Varenga,Respondent. |
Argued November 16, 2015; decided December 17, 2015
People v Varenga, 115AD3d 684, reversed.
On this appeal, we are asked to decide when a defendant's judgment of convictionand sentence becomes final for purposes of applying a new rule of federal constitutionalcriminal procedure, when the defendant does not take a direct appeal to the AppellateDivision. [*2]Defendant asks us to hold that the judgmentdid not become final until one year and 30 days after he was sentenced, inasmuch as thatwas the last day that he could have sought an extension from the Appellate Division tofile a late notice of appeal pursuant to CPL 460.30 (1).
The Appellate Division never granted defendant such relief. No motion pursuant toCPL 460.30 (1) for leave to file a late notice of appeal was ever made. Defendant asks usto extend the finality of the judgment by the one-year grace period of CPL 460.30 (1)simply because that grace period is available,{**26 NY3d at532} and not because he has demonstrated entitlement to its relief. In light of theuncertainty in the finality of judgments that would result if we adopted defendant'sdefinition of finality, we reject that definition. We hold that where a defendant does nottake a timely direct appeal from the judgment, and does not move for leave to file a latenotice of appeal pursuant to CPL 460.30 (1), the judgment becomes final 30 days aftersentencing, on the last day that a defendant has an inviolable right to file a notice ofappeal pursuant to CPL 460.10 (1) (a).
Defendant is a native of Honduras who was granted Temporary Protected Status byUnited States immigration authorities in 1999. In 2008, defendant was charged withassault in the second degree, a class D felony (see Penal Law§ 120.05). On March 19, 2009, defendant pleaded guilty to the charge inexchange for a negotiated sentence of five years' probation. On May 14, 2009, defendantwas sentenced as promised. During the sentencing proceeding, defendant was informedon the record of his right to appeal the judgment of conviction and sentence. Defendantnevertheless did not file a notice of appeal.
Defendant subsequently was notified that his Temporary Protected Status would notbe renewed due to his felony conviction, and he was placed in removal proceedings. InApril 2011, defendant filed a CPL 440.10 motion seeking to vacate the 2009 judgment.Defendant's primary claim was based on the United States Supreme Court's 2010decision in Padilla v Kentucky (559 US 356 [2010]). In Padilla, theSupreme Court held that the Sixth Amendment of the Federal Constitution requirescriminal defense counsel to inform a noncitizen client whether his or her guilty plea"carries a risk of deportation" (id. at 374). At the time defendant filed his CPL440.10 motion, neither the United States Supreme Court nor this Court had determinedwhether Padilla should be applied retroactively. Defendant therefore asserted inhis motion papers that Padilla should apply retroactively.
Supreme Court denied defendant's CPL 440.10 motion without a hearing. The courtconcluded that Padilla should not be applied retroactively to judgments such asdefendant's that became final before Padilla was decided.
A Justice of the Appellate Division granted defendant's application for leave toappeal from Supreme Court's order ({**26 NY3d at533}2012 NY Slip Op 68845[U] [2d Dept 2012]; see CPL 460.15).While that appeal was pending, the United States Supreme Court decided Chaidez vUnited States (568 US —, 133 S Ct 1103[*3][2013]). In Chaidez,the Supreme Court applied the retroactivity principles set forth in Teague v Lane(489 US 288 [1989], reh denied 490 US 1031 [1989]) and held thatPadilla announced a "new rule" that would not be applied retroactively to anyconviction that became final before Padilla was decided on March 31, 2010(see Chaidez, 568 US at —, 133 S Ct at 1113).[FN1]
After Chaidez was decided, the Appellate Division invited the parties tocomment on whether defendant's 2009 judgment of conviction and sentence became finalbefore or after Padilla was decided. Defendant contended that the judgment didnot become final until June 13, 2010, a year and 30 days after he was sentenced on May14, 2009. Defendant's reasoning was that because CPL 460.10 (1) (a) granted him 30days from the imposition of sentence to file a notice of appeal, and CPL 460.30 (1)granted him an additional year to obtain an extension to file a late notice of appeal, hehad not exhausted the availability of an appeal until the last date on which he could havefiled a notice of appeal. The People responded, as relevant here, that the judgmentbecame final 30 days after sentencing, inasmuch as that was the last date upon whichdefendant had the automatic right to file a notice of appeal pursuant to CPL 460.10 (1)(a). The People argued that defendant was not entitled to extend the date of finality of thejudgment by relying on the one-year grace period of CPL 460.30 (1), inasmuch asdefendant never sought an extension to file a late notice of appeal pursuant to thatstatute.
The Appellate Division rejected defendant's contention that it should give broaderretroactive effect to Padilla than the United States Supreme Court gave toPadilla in Chaidez, and therefore held that Padilla should not beapplied retroactively to judgments that became final before Padilla was decided(see 115 AD3d 684, 685 [2d Dept 2014]). The Appellate Division's decisiontherefore was consistent with this Court's subsequent decision in People v Baret (23 NY3d777 [2014], cert denied 574 US —, 135 S Ct 961 [2015]), decided a few months later.{**26NY3d at 534}
Nevertheless, the Appellate Division reasoned that defendant could benefit from thePadilla rule on his CPL 440.10 motion because "defendant's conviction. . . did not become final until June 14, 2010, the last date on which hewould have been permitted to seek leave to file a late notice of appeal" (115 AD3d at685). The Court cited CPL 460.30 (1), as well as its prior decision in People v Andrews (108 AD3d727 [2d Dept 2013], lv denied 22 NY3d 1038 [2013], deniedreconsideration 23 NY3d 1018 [2014]) (see 115 AD3d at 685).
In Andrews, the Appellate Division noted that the defendant in that casecould not benefit from Padilla because "his conviction became final, at thelatest, on October 5, 2009, the [*4]last date on whichhe would have been permitted to seek leave to file a late notice of appeal"(Andrews, 108 AD3d at 728 [emphasis added]). Thus, in Andrews, theAppellate Division did not conclusively decide the issue of finality where a defendantdoes not take a direct appeal. This Court did not sanction Andrews's inconclusivestatement (see generally People v Rodriguez, 91 NY2d 912, 912 [1998]). In thiscase, by contrast, the Appellate Division decided the issue of finality where the defendantdoes not take a direct appeal by applying the CPL 460.30 (1) grace period (see115 AD3d at 685). The Court held that because the judgment did not become final untilafter Padilla was decided on March 31, 2010, defendant could raise aPadilla claim on his CPL 440.10 motion (see 115 AD3d at 685-686). TheAppellate Division remitted the matter to Supreme Court for an evidentiary hearing ondefendant's motion (see id. at 686-687).
A Judge of this Court granted the People leave to appeal (23 NY3d 1068 [2014]).We now reverse.
Initially, we note that there are certain questions of law that are not at issue on thisappeal. First, the retroactive application of Padilla is not at issue. As noted above,in Chaidez, the United States Supreme Court held that Padilla announceda new rule and that pursuant to federal retroactivity principles, that new rule would notapply to convictions that became final before Padilla was decided (seeChaidez, 568 US at —, 133 S Ct at 1113). Last year, in Baret, this Court rejected the defendant'scontentions that we should interpret Padilla more broadly than the Supreme Courtdid in Chaidez, or that Padilla should be applied retroactively pursuant tostate retroactivity{**26 NY3d at 535} principles (seeBaret, 23 NY3d at 795-800). We therefore held that Padilla would not beapplied retroactively in state postconviction collateral review proceedings to judgmentsthat became final before Padilla was decided (see id. at 782-783).
Second, for purposes of assessing whether a new rule of federal constitutionalcriminal procedure applies on collateral review, the date of finality of a judgment wherea defendant does take a direct appeal is not at issue here. When a defendant takesa direct appeal, the judgment becomes final for federal collateral review purposes whenthe defendant's applications for discretionary review from higher appellate courts havebeen denied, or the time for seeking such discretionary appellate review has expired(see Gonzalez v Thaler, 565 US —, —, 132 S Ct 641, 653-654 [2012]; Clay v United States, 537 US522, 527 [2003]; Griffith v Kentucky, 479 US 314, 321 n 6 [1987]). This Courthas applied that rule of finality where the defendant takes a direct appeal (see Policano v Herbert, 7NY3d 588, 593 [2006]; People v Pepper, 53 NY2d 213, 221-222 [1981],cert denied 454 US 967 [1981], and cert denied sub nom. New York vUtter, 454 US 1162 [1982]).
Here, however, defendant did not take a direct appeal. Thus, the only question of lawpresented for our review is when a judgment of conviction and sentence becomes finalwhere the defendant does not take a direct appeal, for purposes of determining whether anew rule of [*5]federal constitutional criminal procedurewill apply in a state postconviction collateral review proceeding.
Relying on the general federal standard of finality (see e.g. Griffith, 479 USat 321 n 6), defendant asserts that the availability of an appeal cannot be truly"exhausted" until one year and 30 days after sentencing, inasmuch as within that timeperiod, he could have asked the Appellate Division to grant him an extension to file anotice of appeal pursuant to CPL 460.30 (1). As defendant acknowledges, however, theUnited States Court of Appeals for the Second Circuit has specifically rejected theproposition that the one-year grace period of CPL 460.30 (1) extends the date of finalityof a judgment for federal habeas corpus purposes.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that afederal habeas corpus petitioner generally must file the petition within one year of thedate that{**26 NY3d at 536} a state court judgmentbecomes final, either "by the conclusion of direct review or the expiration of the time forseeking such review" (28 USC § 2244 [d] [1] [A]). In Bethea vGirdich (293 F3d 577 [2d Cir 2002]), the Second Circuit held that the petitioner'smotion for an extension of time to file a notice of appeal, which the Appellate Divisiondenied, did not extend the date of finality of the petitioner's judgment and therefore didnot "restart" the one-year AEDPA limitations period (see Bethea, 293 F3d at578-579). The Second Circuit wrote:
"As we stated in holding that state-court applications for collateral relief donot 'restart' the AEDPA limitations period, '[i]f the one-year period began anew when thestate court denied collateral relief, then state prisoners could extend or manipulate thedeadline for federal habeas review by filing additional petitions in state court,' thusdefeating the goal of the AEDPA to prevent undue delays in federal habeas review. Thisreasoning applies at least as strongly to motions to extend the time to appeal, which 'canbe sought at any time, even many years after conviction.' Accordingly, we hold that thefiling of a motion to extend the time to appeal or to file a late notice of appeal does not'restart' the AEDPA limitation period" (Bethea, 293 F3d at 578-579 [citationsomitted]).
The Second Circuit therefore concluded that the petitioner's judgment became final30 days after sentencing, "when [his] time for filing a notice of appeal from his judgmentof conviction expired" pursuant to CPL 460.10 (1) (id. at 578; see alsoVillegas v Hunt, 2008 WL 4724296, *2, 2008 US Dist LEXIS 86130, *4-5 [WDNY, Oct. 24, 2008, No. 07-CV-6552 (VEB)]; McDermott v Rock, 2008 WL346371, *1-2, 2008 US Dist LEXIS 8781, *3-5 [ND NY, Feb. 6, 2008, No.9:07-CV-0932 (GLS) (GJD)]).
We agree with defendant and the amici curiae who have submitted a brief in supportof his position that Bethea is not dispositive of the question before us (seegenerally Danforth v Minnesota, 552 US 264, 278-281 [2008]). Nevertheless,Bethea is instructive. This [*6]Court had anopportunity in Baret to depart from the Teague standard and providebroader retroactive application to the Padilla rule than the Supreme Courtprovided to that rule in Chaidez. This Court declined to do so (see Baret,23 NY3d at 795-800). If we were to adopt defendant's definition{**26 NY3d at 537} of finality here, we would in practice beproviding broader retroactive application to the Padilla rule, by extending thedate of finality of judgments beyond the date that the federal courts in New York apply infederal postconviction collateral review proceedings.
More crucial to our analysis, however, is the uncertainty that would result in thefinality of judgments if we adopted defendant's definition of finality. The AppellateDivision did not grant defendant an extension to file a notice of appeal pursuant to CPL460.30 (1) because defendant never sought such relief. Defendant asks us to extend thedate of finality of the judgment by the one-year grace period of CPL 460.30 (1) simplybecause that grace period exists. Contrary to defendant's implication, that grace period isnot available to any defendant who asks for an extension.
Rather, a defendant seeking to file a late notice of appeal pursuant to CPL 460.30 (1)must demonstrate that he or she was prevented from timely filing a notice of appeal dueto the "improper conduct of a public servant or improper conduct, death or disability ofthe defendant's attorney," or the "inability of the defendant and his attorney to havecommunicated . . . concerning whether an appeal should be taken" (CPL460.30 [1] [a], [b]). Defendant did not make any such showing because he did notrequest leave from the Appellate Division to file a late notice of appeal pursuant to CPL460.30 (1).[FN2]Defendant's contention, essentially, is that because he could have made a motionfor leave to file a late notice of appeal pursuant to CPL 460.30 (1), we should grant himthe benefit of that one-year period to extend the date that the judgment became final,without requiring him to demonstrate his entitlement to relief under the statute.
We decline to do so. Adopting defendant's reasoning would result in uncertainty inthe finality of judgments in many procedural situations. For example, a defendant whotakes a [*7]direct appeal to the Appellate Division butdoes not seek leave{**26 NY3d at 538} to appeal to thisCourt in a timely fashion could argue that the judgment was not final until one year and30 days after the Appellate Division affirmance, inasmuch as the defendant couldhave sought leave from this Court to file a belated application for discretionary reviewpursuant to CPL 460.30 (1). Or, a defendant who has filed a notice of appeal with theAppellate Division but has had the appeal dismissed due to failure to perfect could arguethat the judgment is not yet final, inasmuch as the defendant could ask theAppellate Division to vacate the dismissal of the appeal.
Indeed, if we adopt defendant's logic, other defendants who did not take a directappeal conceivably could argue that their judgments were never final, inasmuch as theycould seek to file a late notice of appeal even after the one-year grace period of CPL460.30 has expired by moving for a writ of error coram nobis (see generally People v Syville,15 NY3d 391, 397-401 [2010]). A motion for coram nobis relief in that context hasno time limitation, and the relief granted is precisely the same as the relief granted on asuccessful CPL 460.30 application: the defendant is allowed to file a late notice of appealand take a direct appeal to the Appellate Division (see id. at 402). Although adefendant seeking leave to file a late notice of appeal by way of a writ of error coramnobis generally must satisfy a higher evidentiary burden than a defendant seeking CPL460.30 relief (see People vAndrews, 23 NY3d 605, 611 [2014], rearg denied 24 NY3d 937 [2014],citing Syville, 15 NY3d at 400 n 2), under defendant's reasoning here, adefendant seeking coram nobis relief would not be required to demonstrate entitlement tothat relief in order to extend the finality of the judgment. Rather, the defendant would beentitled to extend the finality of the judgment simply because coram nobis relief isavailable, and not because the defendant has demonstrated entitlement to it.
We have recognized society's interest in the finality of judgments as "formidable"(People v Jackson, 78 NY2d 638, 647 [1991]). Defendant's definition of finalitywould wreak havoc on that formidable interest by requiring any court determining thedate of finality of a judgment to analyze what could have happened rather thanwhat did happen. We therefore reject defendant's proposed definition of finality.We hold that where, as here, a defendant does not take a direct appeal from the judgmentof conviction and sentence, the judgment becomes final 30 days after sentencing, whenthe defendant's automatic right to seek direct appellate review of the judgment expirespursuant to CPL 460.10 (1) (a).{**26 NY3d at 539}
Defendant was sentenced on May 14, 2009. Defendant's judgment of conviction andsentence therefore became final before Padilla was decided on March 31, 2010.Supreme Court did not err in holding that defendant's Padilla claim was notcognizable on his CPL 440.10 motion to vacate the judgment, and the court properlydenied defendant's motion without a hearing.
Accordingly, the order of the Appellate Division should be reversed and the order ofSupreme Court reinstated.
[*8]
Rivera, J. (dissenting). The question presented on this appeal is when does ajudgment become final for purposes of a new rule announced during CPL 460.30'sone-year grace period for filing a notice of appeal. The majority needlessly addresses amuch broader question and concludes that, in the case of a defendant who fails to seek anextension pursuant to 460.30, a judgment is final 30 days from when the defendant wassentenced, pursuant to CPL 460.10 (1) (a). I dissent, and rather than rely on federalhabeas concerns not relevant to the state issues presented in this appeal or unsupportedprudential concerns about a potential impact on finality of judgments, I ground myanalysis on the unique facts of this case and the need for a legally sound and fairapproach to the predicament faced by defendants when a new rule is issued aftersentencing but before the time under 460.30 expires.
Defendant was sentenced uponhis guilty plea on May 14, 2009, and under CPL 460.30 had until June 14, 2010, to seekleave to file a notice of appeal. Approximately 10 weeks before the end of this one-yearperiod, the United States Supreme Court issued its decision in Padilla v Kentucky(559 US 356 [2010]), holding that defense counsel must inform their client of theimmigration consequences of a guilty plea. Defendant filed a motion pursuant to CPL440.10, seeking to vacate his judgment on the grounds that his attorney failed to advisehim of the adverse immigration consequences of his plea. The Appellate Divisionconcluded that defendant's 440.10 motion was timely filed because the new ruleannounced in Padilla was decided before defendant's judgment became final onJune 14, 2010, the last day for defendant to file a notice of appeal under CPL460.30.
The majority reverses, relying, in part, on Bethea v Girdich (293 F3d 577 [2dCir 2002]). However, as the majority acknowledges, Bethea is not dispositive(majority op at 536), but I would add that it is also not persuasive or, as the majority concludes,{**26 NY3d at 540} "instructive." The Second Circuit inBethea sought to minimize undue delays in federal habeas review by avoidingwhat it considered to be a state prisoner's ability to extend or manipulate the deadline forfederal habeas by filing applications for collateral relief. Therefore, the court refused torestart the Antiterrorism and Effective Death Penalty Act limitations period anew withthe filing of a motion to extend the time to appeal or to file a late notice of appeal(Bethea, 293 F3d at 578-579). The concerns cited by the Second Circuit inBethea are of no moment where the defendant's claim is one that results from anew rule issued after the initial 30 days have passed from his sentencing. Here, there isno attempt by defendant to manipulate the system. Rather, defendant seeks judicialreview of a legally cognizable claim, fully available to a defendant whose conviction wasnot final before Padilla was decided.
Turning the focus to this limited class of defendants whose claims arise after theexpiration of the initial 30 days for filing a notice of appeal as of right, the majority'sapproach results in an illogical distinction between similarly situated defendants, andpotentially shields [*9]illegal convictions frommeritorious claims by foreclosing avenues of collateral and habeas review.[FN1]
By way of example, compare the situation where two defendants sentenced on thesame day, in accordance with their guilty pleas, do not file a notice of appeal within the30-day period provided for in CPL 460.10. Ten months later, our Court pronounces anew rule, which ostensibly provides an appellate issue for both defendants. Onedefendant files a motion for an extension under CPL 460.30, which the AppellateDivision denies, and defendant does not seek review from our Court, or alternatively wedeny the leave to appeal. The other defendant does not seek an extension. Under themajority's holding, the defendant who unsuccessfully filed for an extension has a viableargument that the judgment is final when this Court denies leave, or when the time fordiscretionary review of the denial of the 460.30 motion has expired. In contrast, thejudgment of the defendant who did not file for an extension is final 30 days aftersentencing—months before the appellate claim was viable. Yet, these twodefendants are similar in all respects: both failed to file a notice of appeal within the 30days provided{**26 NY3d at 541} for in CPL 460.10 (1)(a), neither one had been granted an extension to file a late notice of appeal, nor will theyhave an opportunity to challenge their judgments on direct appeal. Nevertheless, only thedefendant who files an unsuccessful motion under 460.30 (1) may seek collateral relieffrom the judgment. There is no logical reason for such distinction.
Or consider the example where we announce a new rule on the last day of theone-year extension period. Even the most diligent defendant, including one notincarcerated, is unlikely to seek leave to appeal before the 460.30 time period runs out. Arule foreclosing such a defendant from an opportunity to collaterally challenge thejudgment of conviction and sentence is unjustifiably harsh and unfair, and does nothingto further the goals of our state laws (see e.g. People v Syville, 15 NY3d 391, 399-400 [2010][discussing the purpose of CPL 460.30]).
The majority's "[m]ore crucial" basis for its holding is what it considers to be "theuncertainty that would result in the finality of judgments if [the Court] adopteddefendant's definition of finality" (majority op at 537). However, the majority's prudential concerns regarding the finality of appeals areunjustified. The fact is that CPL 460.30 has a defined one-year deadline (seeSyville, 15 NY3d at 399 [describing the deadline as "a significant restriction"]).Furthermore, defendants already have at their disposal statutory and common-lawmechanisms to challenge a judgment, years after the time to appeal has expired(see CPL 440.10, 460.30; [*10]Syville, 15NY3d at 400-401 [granting coram nobis relief]). These statutes evince the legislativeinterest in ensuring that judgments are reviewed for error. Therefore, I see no reason tointerpret CPL 460.30 narrowly to limit the application of CPL 440.10, therebyforeclosing consideration of a claim where the defendant has not even had the benefit ofappellate review of the judgment. Moreover, as the above examples illustrate, the finalityof the judgments is uncertain until at least the expiration of the one-year extensionperiod, because until that time the People cannot know if a defendant will choose to seekleave to appeal pursuant to CPL 460.30 (1). Finality under our criminal justice system isno more certain under the majority's analysis.[FN2]
{**26 NY3d at 542}Judges Pigott, Abdus-Salaamand Stein concur; Judge Rivera dissents in an opinion in which Chief Judge Lippmanconcurs.
Order of the Appellate Division reversed and order of Supreme Court, SuffolkCounty, reinstated.
Footnote 1:Although the SupremeCourt discussed the finality of the defendant's "conviction" in Chaidez, and wediscuss here the finality of defendant's "judgment" due to our own state's terminology(see CPL 1.20 [15]), we are referring to the same legal principle.
Footnote 2:Contrary to the dissent'ssuggestion (see dissenting op at 540-541), we express no opinion on the date of finality of a judgment where thedefendant makes an unsuccessful CPL 460.30 motion for leave to file a late notice ofappeal. Defendant here made no such motion, and we therefore have no occasion toconsider whether the finality of the judgment would be extended by the mere making of aCPL 460.30 motion, or whether the motion must be granted by the Appellate Division towarrant a departure from the rule we set forth here. To decide that question wouldamount to an improper advisory opinion.
Footnote 1:Notwithstanding themajority's statements to the contrary, my disagreements are based on the ineluctableconclusions to be drawn from the majority's analysis, and not on what the majority claimsit did not decide (see majority op at 537 n 2).
Footnote 2:We should also not turna blind eye to the fact that, within the Appellate Division, the Departments grantextensions under this provision at different rates, and that, as a result, the majority'sholding unfairly penalizes defendants based on differences beyond their control.(See Joanne Macri, Missed Deadlines for Filing a Notice of Appeal: CriminalProcedure Law § 460.30 to the Rescue, New York State DefendersAssociation Practice Advisory [2009], cached athttp://nycourts.gov/reporter/webdocs/MissingDeadlines.pdf, formerly available athttp://www.nysda.org/docs/PDFs/09Missed%20Deadlines%20for%20Filing%20a%20Notice%20of%20Appeal%20CPL%20sec%20460.30%20to%20the%20Rescue.pdf[accessed Dec. 9, 2015].)
Here, the Second Department rendered its decision on defendant's case fully aware ofits practice regarding motions under 460.30, and in my opinion there is no compellinglegal basis to reverse in this case.