People ex rel. Sims v. Scully

146 A.D.2d 822, 537 N.Y.S.2d 297, 1989 N.Y. App. Div. LEXIS 940

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 1989
• Status: Published

Opinion

— In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Dachenhausen, J.), dated October 16, 1980, which, after a hearing, dismissed the writ.

Ordered that the judgment is reversed, on the law, without costs or disbursements, the application is deemed one for a writ of error coram nobis to vacate an order of this court dated February 17, 1981 [80 AD2d 754], which determined an appeal by the petitioner from a judgment of the County Court, Westchester County (Leggett, J.), rendered September 1, 1978, on the ground of the ineffective assistance of appellate counsel, and the matter is transferred to this court for determination in the first instance; and it is further,

Ordered that the application for a writ of error coram nobis is denied, without costs or disbursements.

The Court of Appeals has recently determined that "a common-law coram nobis proceeding brought in the proper appellate court is the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel” (People v Bachert, 69 NY2d 593, 595-596). Therefore, this court will decide the issue of ineffective assistance of appellate counsel de novo.

A review of the record on appeal and the briefs submitted on the defendant’s direct appeal to this court demonstrates that the defendant’s appellate counsel capably presented non-frivolous issues for this court’s consideration. The defendant’s appellate counsel clearly satisfied the constitutional standard of effective assistance of appellate counsel set forth by the United States Supreme Court in Jones v Barnes (463 US 745). Accordingly, the defendant’s application must be denied. Mangano, J. P., Bracken, Kunzeman and Balletta, JJ., concur.