People v. Perez

12 N.E.3d 416, 23 N.Y.3d 89

• Court: New York Court of Appeals
• Decided: April 3, 2014
• Status: Published

Opinions

OPINION OF THE COURT

Smith, J.

These four cases involve criminal appeals that were not pursued for more than a decade — in one case more than two decades — after the filing of a notice of appeal. In each case, the Appellate Division dismissed the appeal on the People’s motion. We hold that the dismissals in People v Perez, People v Calaff and People v Dockery did not violate defendants’ constitutional rights and were proper exercises of discretion. We remit the fourth case, People v Lopez, to the Appellate Division so that counsel can be appointed to represent Lopez in opposing the dismissal of his appeal.

I

Perez

Reynaldo Perez was convicted of murder and manslaughter in 1996, and was sentenced to consecutive terms totalling 33V3 years to life. On August 1, 1996, he filed a notice of appeal. In 1997, Perez’s mother retained a lawyer whom we will call John Johnson to represent Perez on appeal, paying him a retainer of $30,000. Johnson did not prepare or file a brief.

The Departmental Disciplinary Committee for the Appellate Division, First Department began an investigation of Johnson in 2001. In 2003, the Committee notified Perez’s mother that Johnson had been admonished for neglecting Perez’s case. Apparently, Johnson continued to represent Perez after 2003, but he still did not pursue the appeal. In 2008, Johnson filed a motion in Supreme Court to set aside Perez’s conviction under CPL 440.10. The motion was unsuccessful.

On August 22, 2012, Perez retained new counsel, who moved in the Appellate Division to enlarge the time to perfect Perez’s appeal. The People cross-moved to dismiss the appeal. The Appellate Division granted the motion to dismiss on February 5, 2013, more than 16 years after the notice of appeal was filed (2013 NY Slip Op 63657[U] [2013]). A Judge of this Court granted leave to appeal (21 NY3d 946 [2013]), and we now affirm.

Calaff

Ivan Calaff was convicted of attempted burglary, on his plea of guilty, in 1993, and sentenced to 3 to 6 years. At sentencing, he was handed a printed form explaining the need to file a notice of appeal and describing the steps to be taken “[i]f you are without funds” to request the assignment of counsel. On April 15, 1993, the lawyer who represented Calaff at sentencing filed a notice of appeal. Calaff did not request the assignment of appellate counsel. He served his time and was released from prison in 1996.

Calaff was later convicted of several other crimes. Eventually, in 2004, he was adjudicated a persistent violent felon on a burglary charge and was sentenced to 16 years to life. An appeal from the 2004 conviction was unsuccessful (People v Calaff, 30 AD3d 193 [1st Dept 2006]).

On May 9, 2012, the Center for Appellate Litigation, which had represented Calaff on the appeal from the 2004 conviction, moved to be appointed as his counsel on the appeal that had begun in 1993, and sought poor person relief. The Appellate Division assigned counsel, granted poor person relief, and enlarged the time to perfect the appeal (2012 NY Slip Op 76425[U] [2012]). The People moved to dismiss the appeal. In an affidavit submitted in opposition to the People’s motion, Calaff asserted that the lawyer who represented him at sentencing had told him in 1993, in response to a question about the appeal: “Don’t worry about that, I’ll take care of it.” In 2008, according to Calaff s affidavit, he began to make inquiries about the appeal from his 1993 conviction, but got no helpful response until the Center for Appellate Litigation agreed in 2012 to take the case.

On February 19, 2013, almost 20 years after the notice of appeal was filed, the Appellate Division granted the People’s motion to dismiss, saying that defendant’s attempt “to explain his failure to follow the instructions he received at sentencing. . . . is refuted by the sentencing minutes and otherwise without merit” (People v Calaff, 103 AD3d 500, 500 [1st Dept 2013]). A Judge of this Court granted leave to appeal (21 NY3d 1072 [2013]) and we now affirm.

Dockery

In 1986, Alexander Dockery, then 16 years old, was convicted of robbery and committed to the New York State Division for Youth for a term of 2 to 6 years. The lawyer who represented him at trial and sentencing filed a notice of appeal on his behalf on February 28, 1986. Nothing was done to pursue the appeal for 22 years. Meanwhile, Dockery, like Calaff, served his time, was released, and committed more crimes. In 2000, under the name John Harris, he was convicted of burglary and sentenced as a persistent violent felony offender to 25 years to life. His appeal from that conviction was unsuccessful (People v Harris, 304 AD2d 839 [2d Dept 2003]).

In 2008, Dockery moved pro se in the Appellate Division for poor person relief on his 1986 appeal. The People cross-moved to dismiss that appeal, and the Appellate Division granted the cross motion (2008 NY Slip Op 93213[U] [2008]). In 2011, Dockery, now represented by the Center for Appellate Litigation, moved to reinstate the 1986 appeal on the ground that he did not have the assistance of counsel at the time of the People’s previous motion, and that service of that motion was defective. The appeal was reinstated (2011 NY Slip Op 93236[U] [2011]), the People again moved to dismiss it, and that motion was granted on June 21, 2012, more than 26 years after the notice of appeal was filed (2012 NY Slip Op 76557[U] [2012]). A Judge of this Court granted leave to appeal (21 NY3d 911 [2013]), and we now affirm.

Lopez

Teofilo Lopez, having absconded before trial, was convicted in absentia of several counts of robbery in 1999. He was sentenced to concurrent terms of imprisonment, the longest of which was 15 years. The record contains a form dated August 23, 1999, apparently signed on Lopez’s behalf by his attorney, addressed “TO MY ATTORNEY/OR THE COURT CLERK,” which says: “Please file a timely notice of appeal on my behalf.” The parties agree that this document may be considered a timely notice of appeal.

Lopez remained a fugitive for approximately 11 years; nothing was done in that time to prosecute his appeal. In 2010, he was rearrested and returned to court. He was then resentenced to correct his original sentence, which had omitted a term of postrelease supervision (see People v Sparber, 10 NY3d 457 [2008]). The Legal Aid Society was assigned to represent him on appeal from the resentencing (2010 NY Slip Op 84894[U] [2010]).

In 2012, Legal Aid moved on Lopez’s behalf to amend the order assigning counsel so that it applied to the 1999 conviction rather than the resentence, for “leave to file and serve a brief in support of reversing the judgment on direct appeal,” and for other relief. The People moved to dismiss the appeal from the 1999 conviction for failure to prosecute. Legal Aid submitted an affirmation in opposition to this motion, making arguments on the merits and arguing, in the alternative, that the motion was premature because Legal Aid had not yet been assigned to the 1999 appeal, had not seen the trial record, and did not know what issues Lopez would raise.

The Appellate Division granted the People’s motion to dismiss on October 25, 2012, more than 13 years after the notice of appeal was filed (2012 NY Slip Op 88716[U] [2012]). A Judge of this Court granted leave to appeal (21 NY3d 1017 [2013]), and we now reverse and remit for further proceedings.

Defendants formulate their arguments on appeal differently, but we think all can be interpreted as making two arguments: that their constitutional rights to a fair appellate process were violated, and that, even if there was no constitutional violation, the Appellate Division abused its discretion in dismissing their appeals. Lopez also argues, as he did below, that the Appellate Division acted prematurely in dismissing his appeal before counsel could review the trial record and identify the issues to be raised on appeal. We reject the arguments made by Perez, Calaff and Dockery. We agree with Lopez that the Appellate Division acted prematurely, and in his case we do not reach any other issue.

II

Defendants are correct in asserting that they have a constitutional right to a fair appellate procedure that provides them “with the minimal safeguards necessary to make an adequate and effective appeal” (People v West, 100 NY2d 23, 28 [2003]). That right includes a right to “receive the careful advocacy needed ‘to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over’ ” (id., quoting Penson v Ohio, 488 US 75, 85 [1988]) — i.e., a right to counsel. The West case establishes, however, that the procedure followed in Perez, Calaff and Dockery did not deprive the defendants in those cases of any constitutional right.

West bears a distinct resemblance to the cases now before us. The defendant there filed a notice of appeal but “failed to perfect his appeal for more than 14 years” (100 NY2d at 24). We held that the appeal was abandoned, and that the Appellate Division did not abuse its discretion in dismissing it. Noting that West had been given “clear instructions on how to apply for poor person relief’ (id. at 28), we rejected his argument that he was constitutionally entitled to appointment of counsel to assist in preparing a poor person application.

Calaff s and Dockery’s constitutional claims here are essentially identical to West’s. They, like West, were given clear notice of how to obtain a lawyer at state expense, but failed year after year to ask for one. They, like West, suffered no constitutional deprivation when none was appointed. We reject Calaff s argument that West should be overruled.

Dockery seeks to distinguish his case from West on the ground that Dockery was only 16 when he first failed to request the assignment of counsel to represent him on appeal. The distinction might be more persuasive if the failure had not continued until Dockery was 38. But even if we assume that youthful defendants are constitutionally entitled to some relaxation of the rule that defendants who want to obtain appellate counsel must follow the simple instructions given them for requesting that relief, they are not entitled to 22 years of indulgence. Dockery was an adult during the great majority of the time in which he failed to seek counsel to pursue his appeal, and his situation is not constitutionally distinct from that of other adults. Dowd v United States ex rel. Cook (340 US 206 [1951]), on which Dockery relies, is not in point. The State in Dowd had enforced an unconstitutional rule forbidding a prisoner from filing appeal papers; the Supreme Court held that a long lapse of time in which the prisoner took no action after the rule was rescinded was not a waiver of his constitutional claim. Here, the State did nothing to prevent Dockery from pursuing his appeal until the People moved in 2008 to dismiss it.

Perez’s constitutional claim is more colorable than Calaff s and Dockery’s, because Perez had a lawyer — one who was undoubtedly ineffective in failing to perfect the appeal that he was hired to pursue. We have held that a client who was victimized by his appellate lawyer’s procedural errors has been deprived of his constitutional right to the effective assistance of counsel (see People v Syville, 15 NY3d 391, 397-398 [2010] [counsel ineffective for disregarding a timely request to file a notice of appeal]). But the long delay in Perez’s appeal — from the notice of appeal in 1996 to the motion for an extension of time in 2012 — cannot be attributed solely to Johnson’s ineffectiveness. Perez knew at least by 2003, when Johnson was admonished by the Departmental Disciplinary Committee, that his lawyer was neglecting his case. At any time in the following nine years, if not sooner, he could have obtained another lawyer. His counsel said in a 2012 affirmation that Perez was “without funds to retain another attorney,” but Perez has offered no explanation of why he failed to seek assigned counsel. West establishes that it is not unconstitutional to require a defendant to take some minimal initiative to assure himself adequate representation on appeal. The dismissal of Perez’s appeal after his own lengthy neglect of it did not deprive him of any constitutional right.

III

Nor can we conclude that the Appellate Division abused its discretion in dismissing Perez’s, Calaff s and Dockery’s appeals. Two compelling facts stand out in all three cases: the delays were extremely long, and the defendants did not have a good excuse for them. Delays like this are inconsistent with an orderly and efficient system of appellate procedure, and if tolerated can bring a system into disrepute. Even if we assume — a large assumption — that the People can show no specific prejudice from the delays, the Appellate Division was not required as a matter of law to permit these appeals to proceed.

In Calaff and Dockery, there are other reasons supporting the exercise of the Appellate Division’s discretion in the People’s favor. Both Calaff and Dockery, having served their original sentences, continued to ignore their pending appeals until after they were adjudicated predicate felons — and then sought counsel to challenge the long-ago convictions. The facts permit an inference that these defendants did not simply neglect their appellate rights, but consciously chose not to exercise them until they acquired a reason to do so. The inference is particularly strong in Calaff s case, because his 1993 conviction was based on his guilty plea — a plea with which he was presumably satisfied when he entered it, and with which he may still have been satisfied until the earlier conviction became a problem in future cases. Appellate courts are not required to accommodate such belated changes of strategy by entertaining stale appeals (cf West, 100 NY2d at 27 [appeal held abandoned where the defendant “repeatedly attempted to bypass the state appellate process”]).

Perez has a more sympathetic case. There is no obvious strategic reason for his delay, and his mother did hire, at great expense, a lawyer who failed in his duty. But an unfortunate choice of lawyer does not entitle Perez, as a matter of law, to perfect his appeal 16 years after it was taken, where nine of those years elapsed after the lawyer’s failure had been made the subject of a formal sanction, and where no reasonable excuse for that nine-year delay was offered.

IV

We decide Lopez on a narrower ground: The Appellate Division should not have dismissed Lopez’s appeal before assigning him counsel on that appeal and giving counsel a chance to review the record. Taveras v Smith (463 F3d 141 [2d Cir 2006]) is directly in point. Taveras, like Lopez, had failed to appear for his trial, had been tried and convicted in absentia, and had remained a fugitive for years. Taveras’s trial attorney, like Lopez’s, filed a notice of appeal on his behalf, and the appeal remained dormant until Taveras was returned to court. The Appellate Division denied Taveras poor person relief and dismissed his appeal, without assigning counsel.

The United States Court of Appeals for the Second Circuit, considering Taveras’s federal habeas corpus petition, found the Appellate Division dismissal to be “contrary to or an unreasonable application of settled Supreme Court precedent” (463 F3d at 143) — specifically Douglas v California (372 US 353 [1963]), which held that an indigent criminal defendant has a federal constitutional right to court-appointed counsel on his first appeal if the state has provided such an appeal as of right. The Second Circuit reasoned that since, under New York law, a decision to dismiss an appeal by a former fugitive is discretionary, Taveras was entitled to a lawyer to argue that the court should exercise its discretion to retain the appeal (see also People v Kordish, 22 NY3d 922 [2013] [following the Second Circuit holding in Taveras]).

There is no meaningful difference between this case and Taveras, except that Lopez, unlike Taveras, was not completely without counsel when his appeal was dismissed — counsel had been appointed on Lopez’s 2010 appeal from his resentencing. But Lopez did not have counsel on the 1999 appeal, and that is a fact of practical, not just technical, significance: his counsel had not reviewed, or even seen, the record of his 1999 trial. A right to the assistance of appellate counsel has not been honored where counsel has not looked at the record. We therefore remit the Lopez case to the Appellate Division, which should appoint counsel for Lopez and then consider de novo, after receiving counsel’s submissions, whether Lopez’s appeal should be dismissed or retained.

Accordingly, in People v Perez, People v Calaff and People v Dockery the order of the Appellate Division should be affirmed. In People v Lopez, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for further proceedings in accordance with this opinion.