People v. Clayborne

138 A.D.2d 391, 525 N.Y.S.2d 590, 1988 N.Y. App. Div. LEXIS 2150

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1988
• Status: Published

Opinion

Application by the defendant for a writ of error of coram nobis, inter alia, to vacate a judgment of the Supreme Court, Westchester County, rendered February 5, 1979, which was affirmed by order of this court dated June 13, 1983 (see, People v Clayborne, 95 AD2d 984, lv denied 60 NY2d 614).

Ordered that the application is denied.

The defendant asserts (1) that he was deprived of the effective assistance of appellate counsel, and (2) that the fact that certain minutes were lost deprived him of adequate appellate review of his judgment of conviction.

The defendant’s contention with respect to the missing minutes was raised upon his direct appeal, and rejected by this court. Therefore, that contention may not be raised upon this application (see, People v Brown, 13 NY2d 201, 204, mot to amend remittitur granted 13 NY2d 1124, cert denied 376 US 972).

With respect to the defendant’s contention that he was deprived of the effective assistance of appellate counsel, we note that, by order of this court dated August 4, 1980, the defendant, upon his motion, was granted leave to perfect his appeal pro se, and his appeal was determined based upon his pro se brief. In effect, the defendant now seeks reargument of a motion which was decided over seven years ago. As such, the application is untimely. In any case, the defendant fails to point to any deficiencies in his pro se brief.

Therefore, the defendant’s application is denied in all respects. Mollen, P. J., Mangano, Thompson and Brown, JJ., concur.