In People v. Borrell (Ct. App. 5/5/2009) (Lippman, C.J.), the Court of Appeals held that the defendant was not deprived of the effective assistance of appellate counsel. The court's decision made a number of important statements about the writ of error coram nobis, the procedural vehicle for raising such a claim.
The defendant in Borrell was convicted and sentenced under two judgments. Sentences on two counts of one of the indictments were ordered to run consecutively. The Appellate Division faulted appellate counsel for not arguing that the defendant's sentences should have been concurrent. It granted the writ and modified the sentences accordingly. The Court of Appeals reversed.
The majority's opinion makes a number of important points about effective assistance of appellate counsel, generally:
- The Baldi "meaningful representation" standard, used to evalute trial counsel's performance, applies with equal force to coram nobis applications.
- The appropriate question is not whether a better result could have been achieved on appeal but, instead, whether the appellate attorney's actions (briefing, oral argument) were "consistent with those of a reasonably competent appellate attorney." Thus, the focus is not on a particular error but, rather, the totality of the attorney's performance.
- Effective appellate attorneys often make the tactical choice to focus on stronger arguments and forego weaker ones, even if some of the latter may have some merit.
- It is not enough for a defendant to show that there were potentially meritorious issues that could have been briefed.
- The failure to brief an issue will result in a new appeal only if a defendant can demonstrate that the error was "egregious and prejudicial" such that the defendant was deprived of a constitutional. Quite a high standard.
- The burden is on the defendant to show the absence of a tactical explanation for the decision not to brief a particular issue.
Here, the court concluded that the single purported error --- the failure to brief the question of consecutive versus concurrent sentencing --- was far from clear-cut. Indeed, the issue had been raised on a prior coram nobis application as well as a CPL § 440.20 motion, from which no appeal was apparently taken. Moreover, the court found that the defendant's appellate attorney may have had a tactical reason for not addressing the sentencing issue. He focused on six other issues. In fact, his efforts were partially successful: Convictions for seven counts were reversed on suppression grounds.
The court concluded with a pretty striking comment about just how high the standard for ineffective assistance of appellate counsel is:
In dissent, Judge Pigott took a different approach, focusing on the potential effect of counsel's possible error. If the sentencing claim had merit, the defendant's length of incarceration would have been reduced. The dissent also took issue with the majority's characterization of the attorney's brief as meaningful. Judge Pigott pointed out that it was "only" 37 pages long, leaving ample room to raise the sentencing issue. In addition, counsel chose not to deliver oral argument, deciding instead to submit on the papers. The dissent also noted that counsel's victory of winning dismissal of some of the counts only pertained to one of the consolidated judgments. Nevertheless, Judge Pigott noted that the Appellate Division erred when it modified the sentence rather than ordering a new appeal on the issue. (LC)