OPINION OF THE COURT
Titone, J.
Defendant, acting pro se, seeks reargument of an appeal from a judgment of conviction which was affirmed by this court, [210] without opinion (People v Ramos, 91 AD2d 1209, lv denied 58 NY2d 1122) and, alternatively, for leave to appeal from an order of the Supreme Court, Kings County, which denied his application to vacate the judgment pursuant to CPL article 440. The only issue concerns the appropriate procedural vehicle to litigate a claim of ineffective assistance of appellate counsel. Although the question is a close one, we conclude that such claims should be pursued in postjudgment proceedings commenced pursuant to CPL article 440. Accordingly, we grant leave to appeal from the order denying such relief and reverse and remit the matter to the Supreme Court, Kings County, for determination of the application on the merits, and deny the motion for reargument.
Defendant was convicted of manslaughter in the first degree and assault in the first degree in connection with a stabbing at a Brooklyn social club. Defendant asserted a justification defense. On appeal, counsel raised a single contention concerning the conviction, namely, that defendant’s constitutional right to counsel was violated by alleged premature deliberations conducted by the jury during the course of trial. Defendant requested an opportunity to serve a supplemental brief, which he subsequently withdrew. Although we affirmed without opinion (91 AD2d 1209, supra), our records indicate (see, Town of Somers v Covey, 2 NY2d 250, 256) that on “independent review” of the transcript (see, People v Stubbs, 30 AD2d 932) we found that defendant could raise no arguably meritorious challenge to the conduct of his trial.
Defendant then made application to vacate the judgment, contending that he was denied effective assistance of appellate counsel. In his motion papers, he complained of counsel’s failure to raise an issue concerning the trial court’s alleged refusal to answer a question posed by the jury, though he concedes that the alleged “error was not objected to by trial counsel”. Criminal Term held that nisi prius is an “improper forum for the review of the effectiveness of Appellate Counsel * * * The petitioner should seek relief in the Appellate Division. If the Appellate Division determines that the Supreme Court is the proper forum, then this motion may, upon proper application, be restored to the calendar”.
It is now beyond question that a criminal defendant is constitutionally entitled to effective assistance of counsel on any appeal which may be taken as of right (Evitts v Lucey, 469 US —, 105 S Ct 830; People v Gonzalez, 47 NY2d 606). The more difficult question is the procedure that should be used to litigate [211] such claims, a question which has been left open by the Court of Appeals (People ex rel. Douglas v Vincent, 50 NY2d 901) and is the subject of conflicting decisions elsewhere (see, Evitts v Lucey, 469 US_,_, n 10,105 S Ct 830, 838, n 10, supra; United States v Winterhalder, 724 F2d 109). The basic ápproaches are either a motion for reargument or a vacatur of judgment by the trial court to permit a fresh appeal. Each have their own drawbacks. On balance, however, we think that a motion to vacate in the trial court is the best approach.
Resort to reargument is unsatisfactory for several reasons.1 First, it is basic that reargument may not be used to raise new questions not previously advanced in the briefs (e.g., Simpson v Loehmann, 21 NY2d 990). CPL 470.50 (1) and our rules (22 NYCRR 670.5) appear to limit reargument to points overlooked or misapprehended by the court. In fact, our rules limit the period in which to seek reargument to 30 days absent good cause shown. Finally, in some instances, an evidentiary hearing may be needed to ascertain why a certain issue was not pursued by appellate counsel (see, Commonwealth v Sullivan, 472 Pa 129, 371 A2d 468).
On the other hand, the procedure of vacating the judgment and resentencing nunc pro tunc upon the previous finding of guilt has been utilized in analogous circumstances in the past. For example, in instances in which a defendant failed to timely file a notice of appeal due to the fraud (People v Lampkins, 21 NY2d 138) or other failure of assigned counsel (People v Montgomery, 24 NY2d 130; People v Callaway, 24 NY2d 127), misconduct of prison officials (People v Hairston, 10 NY2d 92), insanity (People v Hill, 8 NY2d 935, affg 9 AD2d 451), or ignorance (People v Adams, 12 NY2d 417), the Court of Appeals held that a defendant could bring a proceeding in the nature of coram nobis. The court noted, “As to the form of such redress, it suffices to say that, although the writ of error coram nobis has traditionally been employed to bring to the attention of the trial court matters which occurred during the trial, this court has not hesitated to expand its scope when necessary to afford the defendant a remedy in those cases in which no other avenue of judicial relief appeared available” (People v Hairston, supra, at pp 93-94). Should defendant prove his allegations, the court continued, the [212] defendant should be resentenced nunc pro tunc upon the prior finding of guilt so as to afford him “an opportunity of prosecuting and perfecting an appeal, since the time for taking such appeal would date from the rendition of the new judgment” (People v Hairston, supra, at p 94).
True, cases in which a defendant fails to take a timely appeal are now governed by statute (CPL 460.30; see, People v Corso, 40 NY2d 578) and a majority of the Court of Appeals expressly declined to reach the question of whether a contention of ineffective assistance of counsel may be heard in a proceeding in the nature of coram nobis (People ex rel. Douglas v Vincent, 50 NY2d 901, 903, supra). Judge Meyer, however, joined by two dissenters, urged that some type of coram nobis should be available.
Further, although the alleged error could have been asserted at the time of the original appeal, we do not view CPL 440.10 (2) (c) as a bar. A defendant who successfully demonstrates ineffective assistance of appellate counsel obviously has not engaged in an “unjustifiable failure to raise such ground or issue [of which he now complains] upon an appeal actually perfected by him” (CPL 440.10 [2] [c]). After all, it is not the alleged error alone, but an unjustified, unconstitutional failure of appellate counsel to raise the claim, that calls for relief. Inasmuch as a judgment of conviction is reviewable as of right at the intermediate appellate court level, a broad reading of CPL 440.10 (1) (h) — authorizing the vacatur of a judgment “obtained in violation of a right of the defendant under the constitution of this state or of the United States” — would encompass ineffective assistance of appellate counsel claims concerning representation in intermediate appellate courts.
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OPINION OF THE COURT
Titone, J.
Defendant, acting pro se, seeks reargument of an appeal from a judgment of conviction which was affirmed by this court, [210] without opinion (People v Ramos, 91 AD2d 1209, lv denied 58 NY2d 1122) and, alternatively, for leave to appeal from an order of the Supreme Court, Kings County, which denied his application to vacate the judgment pursuant to CPL article 440. The only issue concerns the appropriate procedural vehicle to litigate a claim of ineffective assistance of appellate counsel. Although the question is a close one, we conclude that such claims should be pursued in postjudgment proceedings commenced pursuant to CPL article 440. Accordingly, we grant leave to appeal from the order denying such relief and reverse and remit the matter to the Supreme Court, Kings County, for determination of the application on the merits, and deny the motion for reargument.
Defendant was convicted of manslaughter in the first degree and assault in the first degree in connection with a stabbing at a Brooklyn social club. Defendant asserted a justification defense. On appeal, counsel raised a single contention concerning the conviction, namely, that defendant’s constitutional right to counsel was violated by alleged premature deliberations conducted by the jury during the course of trial. Defendant requested an opportunity to serve a supplemental brief, which he subsequently withdrew. Although we affirmed without opinion (91 AD2d 1209, supra), our records indicate (see, Town of Somers v Covey, 2 NY2d 250, 256) that on “independent review” of the transcript (see, People v Stubbs, 30 AD2d 932) we found that defendant could raise no arguably meritorious challenge to the conduct of his trial.
Defendant then made application to vacate the judgment, contending that he was denied effective assistance of appellate counsel. In his motion papers, he complained of counsel’s failure to raise an issue concerning the trial court’s alleged refusal to answer a question posed by the jury, though he concedes that the alleged “error was not objected to by trial counsel”. Criminal Term held that nisi prius is an “improper forum for the review of the effectiveness of Appellate Counsel * * * The petitioner should seek relief in the Appellate Division. If the Appellate Division determines that the Supreme Court is the proper forum, then this motion may, upon proper application, be restored to the calendar”.
It is now beyond question that a criminal defendant is constitutionally entitled to effective assistance of counsel on any appeal which may be taken as of right (Evitts v Lucey, 469 US —, 105 S Ct 830; People v Gonzalez, 47 NY2d 606). The more difficult question is the procedure that should be used to litigate [211] such claims, a question which has been left open by the Court of Appeals (People ex rel. Douglas v Vincent, 50 NY2d 901) and is the subject of conflicting decisions elsewhere (see, Evitts v Lucey, 469 US_,_, n 10,105 S Ct 830, 838, n 10, supra; United States v Winterhalder, 724 F2d 109). The basic ápproaches are either a motion for reargument or a vacatur of judgment by the trial court to permit a fresh appeal. Each have their own drawbacks. On balance, however, we think that a motion to vacate in the trial court is the best approach.
Resort to reargument is unsatisfactory for several reasons.1 First, it is basic that reargument may not be used to raise new questions not previously advanced in the briefs (e.g., Simpson v Loehmann, 21 NY2d 990). CPL 470.50 (1) and our rules (22 NYCRR 670.5) appear to limit reargument to points overlooked or misapprehended by the court. In fact, our rules limit the period in which to seek reargument to 30 days absent good cause shown. Finally, in some instances, an evidentiary hearing may be needed to ascertain why a certain issue was not pursued by appellate counsel (see, Commonwealth v Sullivan, 472 Pa 129, 371 A2d 468).
On the other hand, the procedure of vacating the judgment and resentencing nunc pro tunc upon the previous finding of guilt has been utilized in analogous circumstances in the past. For example, in instances in which a defendant failed to timely file a notice of appeal due to the fraud (People v Lampkins, 21 NY2d 138) or other failure of assigned counsel (People v Montgomery, 24 NY2d 130; People v Callaway, 24 NY2d 127), misconduct of prison officials (People v Hairston, 10 NY2d 92), insanity (People v Hill, 8 NY2d 935, affg 9 AD2d 451), or ignorance (People v Adams, 12 NY2d 417), the Court of Appeals held that a defendant could bring a proceeding in the nature of coram nobis. The court noted, “As to the form of such redress, it suffices to say that, although the writ of error coram nobis has traditionally been employed to bring to the attention of the trial court matters which occurred during the trial, this court has not hesitated to expand its scope when necessary to afford the defendant a remedy in those cases in which no other avenue of judicial relief appeared available” (People v Hairston, supra, at pp 93-94). Should defendant prove his allegations, the court continued, the [212] defendant should be resentenced nunc pro tunc upon the prior finding of guilt so as to afford him “an opportunity of prosecuting and perfecting an appeal, since the time for taking such appeal would date from the rendition of the new judgment” (People v Hairston, supra, at p 94).
True, cases in which a defendant fails to take a timely appeal are now governed by statute (CPL 460.30; see, People v Corso, 40 NY2d 578) and a majority of the Court of Appeals expressly declined to reach the question of whether a contention of ineffective assistance of counsel may be heard in a proceeding in the nature of coram nobis (People ex rel. Douglas v Vincent, 50 NY2d 901, 903, supra). Judge Meyer, however, joined by two dissenters, urged that some type of coram nobis should be available.
Further, although the alleged error could have been asserted at the time of the original appeal, we do not view CPL 440.10 (2) (c) as a bar. A defendant who successfully demonstrates ineffective assistance of appellate counsel obviously has not engaged in an “unjustifiable failure to raise such ground or issue [of which he now complains] upon an appeal actually perfected by him” (CPL 440.10 [2] [c]). After all, it is not the alleged error alone, but an unjustified, unconstitutional failure of appellate counsel to raise the claim, that calls for relief. Inasmuch as a judgment of conviction is reviewable as of right at the intermediate appellate court level, a broad reading of CPL 440.10 (1) (h) — authorizing the vacatur of a judgment “obtained in violation of a right of the defendant under the constitution of this state or of the United States” — would encompass ineffective assistance of appellate counsel claims concerning representation in intermediate appellate courts.
A motion to vacate a judgment does not, in our view, impose any additional burdens upon the trial courts. In addition, in those infrequent instances in which it is necessary, the trial court is the best forum for an evidentiary hearing. Pennsylvania (Commonwealth v Sullivan, 472 Pa 129, 371 A2d 468, supra) and Kentucky (Stahl v Commonwealth, 613 SW2d 617, 618) follow this procedure and we find that this approach has the least drawbacks.
We would emphasize, as did the Pennsylvania court, that a finding of ineffective appellate counsel after an evidentiary hearing does not constitute a challenge to the integrity of appellate decisions. Such a determination merely finds that counsel failed to adequately present some claims to the appellate court upon which a defendant might have been entitled to relief. “In determining whether appellate counsel was effective, the [trial court] passes not on our decision, but only on the conduct of the counsel who presented the appeal * * * on a new record established in an evidentiary hearing — a record not [213] before the appellate court on direct appeal” (Commonwealth v Sullivan, 472 Pa 129, 143-144, 371 A2d 468, 475, supra).
In any event, cases in which ineffective assistance of appellate counsel has been rendered are extremely rare. Reasonable professional judgments by appellate attorneys as to what are the most promising issues on appeal should not be second-guessed (Jones v Barnes, 463 US 745, 103 S Ct 3308; Tsirizotakis v LeFevre, 736 F2d 57, 65, cert denied_US_, 105 S Ct 216; People v Kelly,_AD2d_). The failure to raise a particular claim, especially one which, because of the lack of appropriate protest at trial, would only be reviewable as a matter of discretion in the interest of justice and thus divert the court’s attention from what appellate counsel might reasonably believe to be a stronger argument for reversal, does not render the representation constitutionally deficient (Jones v Barnes, supra; United States ex rel. Roche v Scully, 739 F2d 739, 744; Cunningham v Henderson, 725 F2d 32, 36-37).
Nevertheless, because Criminal Term did not pass on the merits of the claim, we remit the case to give it the opportunity to do so. In the event that ineffective assistance of appellate counsel is found, the proper procedure would be to vacate the judgment and resentence the defendant to allow a new appeal to be taken.
For these reasons, the motion insofar as it was for leave to appeal should be granted, the order dated June 13, 1984, reversed, and the case remitted to Criminal Term.2 The motion insofar as it was for reargument should be denied.