The People v. Mario Arjune

This opinion is uncorrected and subject to revision before publication in the New York Reports. ----------------------------------------------------------------- No. 115 The People &c., Respondent, v. Mario Arjune, Appellant. Jenin Younes, for appellant. William H. Branigan, for respondent. National Association of Criminal Defense Lawyers, et al., amici curiae. STEIN, J.: In People v Syville (15 NY3d 391 [2010]), we held that, in rare circumstances, a defendant may seek coram nobis relief despite failing to move for an extension of time to file a notice of appeal within the one-year grace period provided by CPL 460.30. Specifically, we concluded that coram nobis may be - 1 - - 2 - No. 115 available for a defendant who demonstrated that he or she timely requested that trial counsel file a notice of appeal, the attorney failed to comply, and the omission could not reasonably have been discovered within the one-year time limit (see id. at 400-401). Defendant now asks us to expand Syville to situations in which retained trial counsel filed a timely notice of appeal but allegedly failed to advise the defendant of his or her right to poor person relief, or to take any action when served with a motion to dismiss the appeal years after the notice of appeal was filed. Because defendant has not met his burden of proving that counsel was ineffective, we decline to expand Syville under the circumstances presented here. I. Defendant, an English-speaking immigrant from Suriname, asserts that he is minimally literate and has cognitive limitations, which admittedly did not prevent him from maintaining employment in construction, managing independent living skills, taking his elderly mother to doctor appointments and ensuring that she took her medication, and helping his girlfriend's teenage child complete her homework. Defendant immigrated to the United States in 2006. In 2008, he was charged with attempted murder in the second degree, assault in the first degree, tampering with physical evidence, and possession of a weapon in the fourth degree. The charges arose out of an incident in which defendant used a boxcutter to stab another man - 2 - - 3 - No. 115 in the chest, stomach and leg, and then hid the boxcutter -- which was covered in blood -- in a ceiling tile in the bathroom of the restaurant where the stabbing took place. Defendant retained counsel, who asserted a justification defense at the ensuing jury trial. Counsel was able to obtain defendant's acquittal on the attempted murder and first-degree assault charges. Defendant was convicted, however, of tampering with physical evidence and criminal possession of a weapon in the fourth degree. He was sentenced to an aggregate term of 1 to 3 years in prison. At sentencing, the court clerk stated, "[l]et the record reflect the defendant is being handed a notice of appeal." The People have provided us with the standard "Notice of Defendant of His Right to Appeal" that is handed to all Queens County defendants.1 Counsel filed a notice of appeal on defendant's behalf the day after sentencing. ...

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