The opinion of the court was delivered by: Graffeo, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
CPL 460.30 permits the Appellate Division to excuse a defendant's failure to file a timely notice of appeal from a criminal conviction if the application is made within one year of the date the notice was due. In these cases, we are asked whether the coram nobis procedure is available to afford further relief to defendants who did not move within the one-year grace period because they were unaware during that year that their attorneys had not complied with their requests to file notices of appeal.
People v Nathaniel Syville Nathaniel Syville was tried three times for charges arising from a January 2001 drug transaction that culminated in a shooting incident involving multiple victims. The first trial ended in a mistrial when the jury deadlocked on all charges. At the second trial, Syville was convicted of criminal possession of a weapon in the second degree, acquitted of attempted murder relating to one victim and the jury hung on the remaining attempted murder and assault counts, resulting in a second mistrial as to those offenses. Syville was sentenced on the weapon possession conviction in November 2004 but execution of his sentence was stayed pending resolution of the remaining charges. The third trial again culminated in a mistrial in January 2006 and, the following month, the unresolved charges were dismissed when the People announced that they would not seek a fourth trial. Syville's attorney filed a notice of appeal relating to the November 2004 conviction in March 2006.
In July 2006, Syville filed a pro se motion for poor person status and other relief, at which time he discovered that the notice of appeal filed by his trial attorney had not been timely under CPL 460.10(a). That statute required that a notice of appeal be filed within 30 days of the November 2004 sentencing proceeding. CPL 460.30 permits a defendant to seek leave to file a late notice of appeal provided that the application is made within one year of the date the notice should have been filed. In this case, however, the one-year grace period had already elapsed by the time Syville discovered his attorney's error. Once he learned of the untimely filing, Syville pursued several applications for relief under CPL 460.30 but those requests were denied by the Appellate Division.
Syville subsequently applied for a writ of error coram nobis in the Appellate Division, again seeking permission to file a late notice of appeal. The petition included affidavits from Syville and his former attorney stating that, upon being convicted of the weapon possession offense, Syville had requested that his attorney file a notice of appeal on his behalf. Indeed, the record reflects that Syville's counsel announced at the sentencing proceeding that he intended to file such a notice. In his affidavit, the attorney explained that he did not file a notice of appeal within 30 days of the November 2004 judgment of conviction under the mistaken belief that it would have been premature to file the notice of appeal while some of the charges remained pending. Furthermore, he had erroneously believed that, when the sentencing court stayed the sentence, the 30-day period for filing a notice of appeal was also stayed. Syville contended that he had reasonably relied on his counsel's advice concerning the proper time for filing a notice of appeal and the failure to timely pursue an appeal was entirely a product of lawyer error.
In the coram nobis application, Syville argued that he should not be penalized for his attorney's mistake because he had not -- and could not reasonably have -- discovered the error within the one-year grace period, particularly since he continued to be represented by the same lawyer throughout the relevant time period. Contending that his attorney's lapse amounted to unconstitutional ineffective assistance of counsel, defendant claimed that it would offend the Due Process Clause to apply the one-year statutory time limit to preclude his pursuit of an appeal. The People consented to coram nobis relief. Noting these unusual circumstances, the People reasoned that Syville should be allowed to perfect his direct appeal in that his failure either to meet the 30-day filing deadline or request relief within the CPL 460.30(1) one-year grace period stemmed solely from defense counsel's legal error. Notwithstanding the People's concession, the Appellate Division denied Syville's application for coram nobis relief. A judge of this Court granted Syville leave to appeal (13 NY3d 911 ).
After a jury convicted him of conspiracy in the second degree and two counts of criminal sale of a controlled substance in the first degree, Tony Council was sentenced in February 2007, thereby triggering the 30-day period for filing a notice of appeal. Council's trial attorney did not file a notice of appeal within 30 days of the judgment of conviction.
More than two years later, when Council retained a different lawyer to represent him on appeal, he filed a coram nobis application in the Appellate Division seeking leave to file a late notice of appeal and a reasonable extension of time to perfect the appeal. The application was supported by affidavits from Council, his mother, his trial attorney and his appellate lawyer. Those affidavits revealed that, at the time of his conviction, Council had asked his trial attorney to file a notice of appeal. In fact, Council maintained that his attorney demanded and received payment of $2,000 prior to filing the notice.*fn1 His trial attorney, who was not retained to perfect the appeal, averred that he had neglected to file the notice of appeal as a result of "law office failure."
Council remained unrepresented for the next two years. He asserted that he was distracted by health problems and that he had relied on his mother to raise the funds necessary to hire a lawyer to perfect the appeal. During this time, Council claimed that he periodically asked his mother to expedite her efforts out of concern that the time to file an appellate brief might expire. But it appears from the record that Council never contacted the Appellate Division to ascertain the deadline for perfecting his appeal nor pursued poor person relief or assignment of counsel in that court.
In the course of interviewing a prospective appellate attorney in January 2009, Council's mother discovered that trial counsel had not filed a notice of appeal. At this point in time, both the 30-day period for filing a timely notice of appeal and the CPL 460.30 one-year grace period had long since expired. Eventually, Council hired an appellate lawyer, who filed an application for coram nobis relief in April 2009. In response to that application and the affidavits detailed above, the People submitted a two-paragraph affirmation asserting that, given the trial attorney's acknowledgment that defendant had timely requested that he file a notice of appeal and that his failure to do so was the result of law office failure, the People did not oppose Council's request for relief. Despite the People's lack of opposition, the Appellate Division denied Council coram nobis relief in a brief memorandum opinion, citing CPL 460.30. After Council's subsequent request for rehearing and reconsideration was denied, a Judge of this Court granted Council leave to appeal (13 NY3d 859 ).
The primary issue on appeal is whether a defendant who discovers after the expiration of the CPL 460.30 grace period that a notice of appeal was not timely filed due to ineffective assistance of counsel has recourse through a coram nobis application. Recognizing that the Due Process Clause of the Federal Constitution requires that some avenue for relief be provided in such a circumstance, we conclude that coram nobis is the appropriate procedural course in New York.
We begin with the recognition that there is no federal constitutional mandate that requires states to grant criminal defendants an appeal as of right for review of trial errors (Evitts v Lucey, 469 US 387, 393 ). Thus, "the right to appeal is a statutory right that must be affirmatively exercised and timely asserted" (People v West, 100 NY2d 23, 26 , cert denied 540 US 1019 ). But that being said, where a state has granted a criminal defendant a direct appeal as of right (as does New York), it must "make that appeal more than a meaningless ritual" by affording a right to counsel on appeal (Evitts, at 394 [internal quotation marks and citation omitted]). It follows that ...