Court of Appeals for New York, Albany (Courtesy photo) Court of Appeals for New York, Albany. (Courtesy photo)

The New York Court of Appeals rejected an argument on Tuesday from a defendant that said he should be given a second chance to appeal his conviction to the high court because his public defender failed to file the necessary paperwork on time three years ago.

Chief Judge Janet DiFiore wrote in the majority opinion that an attorney’s failure to file a timely application for leave to the Court of Appeals in a criminal case does not deprive the defendant of their constitutional right to the effective assistance of counsel or due process.

“Contrary to defendant’s argument, there are no state constitutional grounds to ignore the legislatively imposed time limitation—applicable to all defendants represented or not, rich or poor—to the remedy provided for improper attorney conduct in failing to file a timely [criminal leave application],” DiFiore wrote.

The case involves Jakim Grimes, who was convicted and sentenced to prison on drug charges in 2012. Grimes appealed his conviction to the Appellate Division, Fourth Department, which affirmed in 2015. Grimes then sought to appeal his conviction to the Court of Appeals.

Philip Rothschild, an attorney with the Hiscock Legal Aid Society in Syracuse, represented Grimes at the time. According to DiFiore, Rothschild wrote to Grimes days after the Appellate Division’s decision and said he was “in the process of drafting the leave application to the court of appeals” and that he “should receive it shortly.”

Grimes never received the leave application. He followed up with Rothschild more than a year later when he was released from prison and discovered the application was never filed.

According to DiFiore, Rothschild alleged that “due to office failure and [his] lack of oversight,” the criminal leave application “was never timely filed and served and the case was later mistakenly marked as closed.”

Rothschild then asked the Appellate Division for coram nobis relief, or essentially a do-over since there was a fundamental error on his part rather than from Grimes.

“[R]elying upon our representation, [defendant] could not have reasonably discovered within a one-year period that his appellate rights were not preserved,” Rothschild wrote, according to DiFiore.

The Appellate Division denied the motion in a one-sentence decision, which the Court of Appeals affirmed in a much longer decision on Tuesday. Grimes was represented before the high court by Joseph Perry, a senior associate at Baker Botts in Manhattan. Perry did not return a call for comment.

DiFiore wrote in the majority opinion that Grimes’ constitutional rights to effective counsel and due process were not violated, so coram nobis relief was not appropriate in the case. State law allows an extension of “not more than one year” in cases where an attorney fails to file a criminal leave application within the initial 30-day period. This case should not be an exception, DiFiore wrote.

“In the absence of a constitutional violation, a defendant cannot resort to coram nobis to abrogate the one-year time limitation on the remedy provided in CPL 460.30 for the improper conduct of his or her attorney in failing to file a timely CLA,” DiFiore wrote.

DiFiore said that’s partly because there’s more of a foundation for the defense to use when appealing from the Appellate Division to the Court of Appeals, rather than from the trial court to the Appellate Division. In the latter situation, the defense has to perfect an appeal, prepare briefs, make arguments, etc. The obligations are the same in the former situation, but the defense has more to work with, DiFiore said.

“A second-tier appeal—where the defendant has the benefit, from the perfection of the first-tier appeal, of a prepared or original record of the trial court proceedings, briefs by both counsel on the merits of the errors that allegedly occurred at trial, and the written opinion of the intermediate appellate court determining the validity of the conviction—does not require, as a matter of constitutional law, the assignment of counsel for a meaningful appeal under the federal Due Process Clause,” DiFiore wrote.

Judge Rowan Wilson wrote in a strongly worded dissent that the majority “veered sharply off course” in its decision.

“The majority’s decision disserves the rights of all New Yorkers and diminishes the role of this Court in ensuring justice,” Wilson wrote. “The majority’s rationale would satisfy neither a constitutional scholar nor—more importantly—the lay citizens to whom the right to counsel belongs.”

Wilson said the case was about whether the state constitution requires a defendant’s counsel to meet minimal standards of effectiveness, regardless of the venue. He argued that Grimes should have been given another chance because his attorney, at the time, did not meet that standard. He pushed back on DiFiore’s argument that the same standards for counsel do not apply on a second-tier appeal.

“Daunting is the prospect of explaining to the citizens of New York why the only time we tolerate ineffective lawyers is when they are petitioning the highest court to hear issues of ‘significant public interest’ or to decide ‘legal principles of major significance,’” Wilson wrote, quoting the majority opinion. “The answer the majority would have us give to the public appears to be that we do not need the parties’ lawyers to assist us in determining when to grant leave. I, for one, do.”

Judge Jenny Rivera signed on to Wilson’s dissent. Judges Leslie Stein, Eugene Fahey, Michael Garcia, and Paul Feinman concurred with DiFiore’s opinion.

A spokesman for the Onondaga County District Attorney’s Office, which prosecuted Grimes, declined to comment on the Court of Appeals decision Tuesday. Rothschild, Grimes’ original attorney, also declined to comment on the decision.


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