Opinion
2001-01556
September 18, 2002.
Application by the appellant for a writ of error coram nobis to vacate a decision and order of this court, dated March 20, 1989 (People v. Bolling, 148 A.D.2d 622), affirming a judgment of the County Court, Nassau County, rendered April 18, 1985, on the ground of ineffective assistance of appellate counsel. By decision and order of this court, dated July 30, 2001, the appellant was granted leave to serve and file a brief on that issue, and, in effect, the coram nobis application was held in abeyance in the interim.
Arza Feldman, Hauppauge, N.Y., for appellant.
Denis Dillon, District Attorney, Mineola, N.Y. (Bruce E. Whitney and Lawrence J. Schwarz of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, CORNELIUS J. O'BRIEN, GABRIEL M. KRAUSMAN, JJ.
ORDERED that the application is denied.
The defendant was convicted of robbery in the first degree (Penal Law § 160.15) and criminal use of a firearm in the first degree (former Penal Law § 265.09, now § 265.09[1][b]), for which he received concurrent sentences. The defendant contends that appellate counsel was ineffective for failing to raise on direct appeal the claim that the firearm conviction violated the prohibition against double jeopardy, based on People v. Brown ( 67 N.Y.2d 555, 560, cert denied 479 U.S. 1093).
A double jeopardy claim is waived if it is not timely interposed at trial (see People v. LaRuffa, 37 N.Y.2d 58, cert denied 423 U.S. 917). Since the defendant failed to raise a double jeopardy claim before entry of the judgment of conviction, the issue was unpreserved for appellate review, and appellate counsel cannot be considered ineffective for failing to raise it on the defendant's direct appeal (see People v. Villante, 292 A.D.2d 638; see also Aparicio v. Artuz, 269 F.3d 78, 96).
The defendant relies on the fact that a Federal court vacated his codefendant's firearm conviction on the ground that appellate counsel was ineffective for failing to raise a double jeopardy claim (see Jackson v. Leonardo, 162 F.3d 81). We do not find the decision persuasive, however, as the Federal court failed to address the issue of preservation (compare Aparicio v. Artuz, 269 F.3d at 96). Furthermore, the Federal court's determination that the codefendant was prejudiced by his counsel's failure to seek vacatur of the firearm conviction was based on speculation that the conviction might be taken into account if state and Federal enhanced sentencing statutes are changed in the future.
SANTUCCI, J.P., S. MILLER, O'BRIEN and KRAUSMAN, JJ., concur.