Opinion
2037-2010
10-18-2011
The People of the State of New York, Appellee, v. Robert Gabriel, Defendant/Appellant.
Ostrer & Hoovler, P.C. By: Cynthia Dolan, Esq., of counsel Attorney for Defendant/Appellant Department of Environmental Conservation Office of General Counsel. By: Anthony A. London, Esq., of counsel Attorney for the People/Appellee.
Ostrer & Hoovler, P.C. By: Cynthia Dolan, Esq., of counsel Attorney for Defendant/Appellant
Department of Environmental Conservation Office of General Counsel. By: Anthony A. London, Esq., of counsel Attorney for the People/Appellee.
Frank J. LaBuda, J.
This matter comes on by appellant motion to extend the time to file a notice of appeal from his conviction of February 8, 2010 by non-jury trial in Town of Highland Justice Court for two DEC violations.
The NYS Attorney General and the Sullivan County District Attorney have declined to appear and consents to the Department of Environmental Conservation (DEC) appearing.
The DEC submits affirmation in opposition.
Appellant, who appeared Pro Se, was convicted of violations of ECL §189.2(f) and ECL §189.3(b) on February 8, 2010 by Town of Highland Justice Court after a non-jury trial. He was fined $150.00.
Appellant subsequently attempted to appeal by sending a letter dated March 8, 2010 to this Court professing his desire to appeal. This Court forwarded his letter to the Town of Highland Justice Court and the Sullivan County Court Clerk, a Deputy County Clerk.
Previously this Court granted the defendant/appellant an extension of time to perfect his appeal by Decision and Order dated November 23, 2010.
Appellant now moves, through his Pro Bono appellate counsel, for an Order of this Court to extend his time to file a notice of appeal pursuant to CPL §460.30(1)(a).
CPL §460.30(1)(a) allows a defendant to extend his time to appeal to an intermediate court when there is "...improper conduct of a public servant...".
Defendant argues that following his conviction and fine in the Town of Highland Justice Court on February 8, 2010 the Town Judge did not apprise him of his right to appeal or in any way even mention an appeal.
Appellee, in paragraph 17 of his affirmation in opposition, boldly states, without citing any authority, "...It is submitted that since this matter involved a petty offense without imposition of jail time, the local criminal court was not obligated to inform Mr. Gabriel of his right to appeal...".
Appellee is in error.
A defendant who has appeared pro se must be advised by the trial court of his right to appeal after conviction and the clerk of the court shall prepare and file said notice of appeal on behalf of the defendant if so requested. 22 NYCRR 821.3(a).
Specifically, 22 NYCRR 821.3(a) states, in pertinent part,
"(a) After conviction or denial of post conviction relief. If a defendant has appeared pro se, the trial court shall advise the defendant of his right to appeal from a judgment of conviction,..." and, further, "...If the defendant so requests, the clerk of the court shall prepare and file and serve forthwith a notice of appeal on behalf of the defendant from a judgment of conviction."
Appellee's argument that the trial court has no duty to advise a pro se defendant of his right to appeal from a petty offense conviction is plainly contrary to 22 NYCRR 821.3. 22 NYCRR 821.3 does not differentiate between a defendant's right to appeal between a crime or a petty offense. A defendant has a right to appeal all offenses from a traffic infraction through a felony.
The "improper conduct of a public servant" as grounds to extend a defendant's right to file a notice of appeal has been found to encompass a trial court's failure to advise the defendant of his right to appeal. People v Corso, 40 NY2d 578 (1976); People v Montgomery, 24 NY2d 130 (1969).
The Court of Appeals declared in People v Montgomery, supra that "...every defendant has a fundamental right to appeal his conviction and that, accordingly, basic fairness and due process require that the right not be dissipated either because the defendant was unaware of its existence or counsel failed to abide by a promise to either file or prosecute an appeal."
After Montgomery, supra, which allowed an extension when counsel did not apprise defendant of his right to appeal, CPL §460.30 was enacted in 1970 to include a pro se defendant's right to extend his time to file a notice of appeal when a trial court has not advised him of this right. See, Peter Preiser's commentaries to CPL §460.30.
It is accurate that CPL §460.30 requires that a defendant may extend his time to file a notice of appeal if application is made within one year of the time that said notice is due.
The Pro Se Defendant herein was convicted and sentenced on February 8, 2010. There is no question that he was not informed of his right to appeal by the trial court. However, in the course of his daily business, defendant was told by a non-attorney and non-judicial person, that he should appeal. It was to this end that the defendant sent a letter dated March 8, 2010 to your within Judge that he wanted to appeal. Said letter was forwarded on to the Justice Court and the Sullivan County Court Clerk.
Although this attempt to appeal was legally ineffective it shows the defendant, without legal knowledge or advice, attempted to appeal within one month of his conviction.
After the defendant obtained pro bono appellate counsel he moved to extend his time to perfect his appeal. This Court's Decision and Order to grant said extension of time was dated November 23, 2010, well within the one year period of CPL §460.30.
When a defendant failed to file a timely notice of appeal because of the ineffectiveness of counsel, and the defendant is unaware of this until the one year grace period of CPL §460.30 has run, a writ of coram nobis is an appropriate course. People v Syville, 15 NY3d 391(2010).
It follows, a priori, that a similarly situated defendant, without an attorney, who is unaware of his right to appeal until after the one year period has run should also be entitled to a writ of coram nobis as announced in the Court of Appeals case of People v Syville, supra.
It is unnecessary to hold a fact finding hearing as to whether the defendant was apprised of his right to appeal by the Trial Court herein because the transcript of his non-jury trial, conviction and sentence all on February 8, 2010 shows that the court never mentioned his right to appeal.
This Court finds that the defendant represented himself at trial. He was convicted after a non-jury trial of two DEC violations. After conviction he was immediately sentenced to a fine of $150.00. The Trial Court did not advise him of his right to appeal as required by both 22 NYCRR 821.3(a) and CPL §460.30.
Defendant attempted to appeal within the one year grace period of
CPL §460.30. Even if the one year grace period in CPL §460.30 passed, the defendant is still entitled to extend his time to file a notice of appeal under People v Syville, supra and the circumstances herein.
Based upon the above, it is
ORDERED, that defendant's motion to extend his time to file a notice of appeal is granted, and it is further
ORDERED, that defendant shall properly serve a notice of appeal in duplicate to the Town of Highland Justice Court and the above attorney representing the Department of Environmental Conservation within thirty days from receipt of this Decision and Order.
This shall constitute the Decision and Order of this Court.
DATED: October 18, 2011
Monticello, NY
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Hon. Frank J. LaBuda
Sullivan County Court Judge and Surrogate