The Appellate Division denied the writ, stating that the defendant failed to establish that he was denied the effective assistance of appellate counsel. The defendant thereafter applied for a writ of error coram nobis, alleging that he had been deprived counsel on the State’s appeal.
Although a writ of error coram nobis generally raises the claim that the defendant received ineffective assistance of appellate counsel, the writ is also a proper vehicle for addressing the complete deprivation of appellate counsel that occurred here. Accordingly, the Appellate Division should have granted the defendant’s application for a writ of error coram nobis. Because the defendant’s trial counsel failed to comply with the terms of NYCRR (New York Codes Rules and Regulations), the defendant was deprived of appellate counsel to which he was entitled.
The Appellate Division, apparently unaware that the defendant had been represented by assigned trial counsel, determined the Sate’s appeal, noting no appearances by the defendant. Although the assigned trial counsel informed the defendant of the State’s appeal, the defendant’s counsel failed to represent the defendant on that appeal. If a defendant was represented by assigned counsel at the trial court, such assignment shall remain in effect and counsel shall continue to represent the defendant as the respondent on the appeal until entry of the order determining the appeal and until counsel shall have performed any additional applicable duties imposed upon him by these rules, or until counsel shall have been otherwise relieved of his assignment. Prostitution was not involved and prostitution was not charged.
The Court denied the defendant’s application for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, the decision and order of this Court dated January 27, 2009. In an order dated October 26, 2010, the Court of Appeals reversed the decision and order of the Court dated July 7, 2009, granted the defendant’s application for a writ of error coram nobis, vacated the decision and order and remitted the matter to the Court for a new determination of the State’s appeal.
The order of the County Court is modified on the law and the facts, by deleting the provisions thereof granting those branches of the defendant’s application which were to set aside the jury verdict convicting him of robbery in the first degree, robbery in the second degree, criminal use of a firearm in the first degree under count 10, and criminal facilitation in the fourth degree, and substituting therefore provisions denying those branches of the application; as so modified, the order dated May 11, 2007, is affirmed, counts 1, 2, 3, 7, 8, 9, 10, and 12 of the indictment and the verdicts of guilt thereon are reinstated, and the matter is remitted to the County Court for the imposition of sentence on those counts.
Upon a de novo consideration of the State’s appeal, and upon consideration of the arguments presented by assigned appellate counsel, the County Court erred in granting those branches of the defendant’s motion which were to set aside the jury verdict convicting him of robbery in the first degree, robbery in the second degree, criminal use of a firearm in the first degree, and criminal facilitation in the fourth degree. Likewise, for the reasons set forth in the original case, the evidence was legally insufficient to establish the defendant’s guilt as an accessory pursuant to count 11 of the indictment, which charged criminal use of a firearm in the first degree under Penal Law.
The defendant’s contention that he was denied his right to effective assistance of trial counsel is based upon matter out of the record, and is not properly before the Court.
Everyone should be given the chance to defend themselves in court. If you are in a middle of a criminal trial and criminal injustice was committed against you, consult Stephen Bilkis and Associates to speak with the Nassau County Criminal Attorney and a Nassau County Assault Lawyer. You can also seek assistance from the Nassau County Order of Protection Attorney while you court battle is ongoing.