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THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MARVIN FORSYTHE, DEFENDANT–APPELLANT.
MEMORANDUM AND ORDER
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Oneida County Court (Michael L. Dwyer, J.), dated May 3, 2010. The order denied the motion of defendant pursuant to CPL 440.10.
It is hereby ORDERED that said appeal is unanimously converted to a motion for a writ of error coram nobis, the motion is granted in accordance with the following Memorandum and the matter is remitted to Oneida County Court for proceedings pursuant to CPL 470.45: After defendant was charged with criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ), County Court granted that part of defendant's motion to dismiss the indictment charging him with those crimes. The People appealed, and we reversed the order and reinstated the indictment (People v. Forsythe, 20 AD3d 936). Defendant had been represented by retained counsel during the proceedings in County Court, and the People's notice of appeal was served on defense counsel. Defense counsel sent a letter to the People requesting the grand jury minutes, but she did not file a brief in opposition to the People's appeal before this Court, nor does the record reflect that she otherwise made any appearance before this Court.
A claim of ineffective assistance of appellate counsel must be raised in an error coram nobis proceeding (see People v. Bachert, 69 N.Y.2d 593, 595–596; People v. Smith, 78 AD3d 1583, 1584). We convert defendant's appeal from the order denying his CPL 440.10 motion to a motion for a writ of error coram nobis (see People v. Angulo, 140 A.D.2d 209, lv dismissed 72 N.Y.2d 855), and we grant the motion.
“It is well settled that criminal defendants are entitled under both the Federal and State Constitutions to effective assistance of appellate counsel” (People v. Borrell, 12 NY3d 365, 368). In addition, “defendants have important interests at stake on a People's appeal” (People v. Ramos, 85 N.Y.2d 678, 684). “Given the consequences of a reversal and the possible resumption of criminal proceedings, the defendant certainly has an interest in being informed that the People's appeal is pending and continuing” (id. at 684–685). “Moreover, ․ other rights requiring protection upon the People's appeal include the right to appellate counsel of the defendant's own choice, the right to appear [pro se] on the appeal, and the right to seek appointment of counsel upon proof of indigency” (id. at 685). However, due process does not require that a defendant be personally served with the People's appellate briefs (see id. at 681).
Moreover, this Court failed to ascertain whether defendant was represented or had waived counsel on the People's appeal (see People v. Garcia, 93 N.Y.2d 42, 44). “When it was discerned that defendant was unrepresented on appeal, absent record evidence that defendant was informed of his right to counsel and that he waived that right, [this] Court should not have proceeded to consider and decide the People's appeal” (id. at 46). The People contend that Garcia is distinguishable from this case because here it appeared to the People that defendant was represented by counsel, inasmuch as defense counsel informed the People that she had received the People's brief and requested the grand jury minutes. However, as previously noted, our records do not reflect that defense counsel made any appearance on behalf of defendant on the People's appeal. In addition, there is no showing that defendant was informed of his right to representation on the appeal or to appear pro se.
Therefore, the orders of this Court entered July 1, 2005 (Forsythe, 20 AD3d 936) and February 11, 2009 (Forsythe, 59 AD3d 1121) are vacated, the judgment of conviction is vacated, and this Court will consider the People's appeal de novo. The People shall perfect the appeal on or before July 25, 2013.
Frances E. Cafarell
Clerk of the Court
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Docket No: KA 10–01359
Decided: April 26, 2013
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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