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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 193 

The People &c.,

 Respondent,

 v.

Howard Grubstein,

 Appellant.

Richard L. Herzfeld, for appellant.

Elizabeth L. Schulz, for respondent.

SMITH, J.:

We hold that a defendant who asserts that he was

deprived of his right to counsel when he pleaded guilty pro se is

not barred from raising that claim in a motion under CPL 440.10

by his failure to raise it on direct appeal.

In 2008, defendant pleaded guilty in Tuxedo Town Court

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to a misdemeanor charge of driving while intoxicated. He was not

represented by counsel in the Town Court proceeding, was not

advised of his right to appeal, and took no appeal. In 2010,

having been arrested again for a similar offense, he was charged

with a felony under Vehicle and Traffic Law § 1193 (1) (c) (i),

applicable to a person who drives while intoxicated after having

been convicted of such a crime within the preceding 10 years. He

then moved in Town Court to withdraw his 2008 guilty plea.

Town Court granted the motion, concluding that

defendant's "waiver of counsel was not made knowingly or

intelligently." On the People's appeal, the Appellate Term

reversed, concluding that Town Court erred in deciding the merits

of "certain of defendant's claims" because "to the extent that

adequate facts appeared in the record to evaluate" those claims 

"the only possible avenue of review was a direct appeal" (People

v Grubstein, 37 Misc 3d 142(A) [App Term 2012]). A Judge of this

Court granted leave to appeal (21 NY3d 1015 [2013]), and we now

reverse.

It is correct as a general matter that, when the record

is sufficient to permit review of an issue on direct appeal, a

defendant who either has not appealed his conviction or, having

appealed, has failed to raise that issue is barred from later

asserting it as a basis for post-conviction relief (see People v

Cuadrado, 9 NY3d 362 [2007]). CPL § 440.10 (2) (c) says:

"Notwithstanding the provisions of

subdivision one, the court must deny a motion

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to vacate a judgment when:

* * *

" (c) Although sufficient facts appear on the

record of the proceedings underlying the

judgment to have permitted, upon appeal from

such judgment, adequate review of the ground

or issue raised upon the motion, no such

appellate review or determination occurred

owing to the defendant's unjustifiable

failure to take or perfect an appeal during

the prescribed period or to his unjustifiable

failure to raise such ground or issue upon an

appeal actually perfected by him[.]"

But there is an obvious risk of unfairness in applying

this procedural bar where the ground that the defendant seeks to

raise is that he was deprived of his right to counsel. If he was

indeed deprived of that right, that very deprivation may well

have led him either not to appeal or not to have presented the

issue to an appellate court. A defendant who has wrongly been

deprived of a lawyer can hardly be blamed for failing to follow

customary legal procedures.

Section 440.10 (2) (c) itself appears to recognize this

problem, by making its bar applicable only where the failure to

appeal, or the failure to raise a particular argument, is

"unjustifiable." The statute thus implies that such failures are

sometimes justifiable, and an interference with the right to

counsel that impaired the defendant's ability to pursue appellate

relief should normally be a sufficient justification. Here, the

justification is made stronger by Town Court's failure, at the

time of the 2008 plea and sentence, to advise defendant of his

right to appeal, though an applicable regulation requires that

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advice to be given when a defendant appears pro se (see 22 NYCRR

671.5).

Before the enactment of CPL 440 New York courts

recognized, in cases discussing the writ of error coram nobis,

section 440's common-law predecessor, that the usual procedural

barriers to post-conviction relief must sometimes be relaxed when

a violation of the right to counsel is claimed. "'Judicial

interference with the right to counsel guaranteed to defendant by

law may warrant the extraordinary remedy of coram nobis, even

though the error appears on the face of the record'" (People v

Hannigan, 7 NY2d 317, 318 [1960] [per curiam], quoting People v

Silverman, 3 NY2d 200, 202 [1957]; see also People ex rel. Sedlak

v Foster, 299 NY 291, 294 [1949]; Matter of Bojinoff v People,

299 NY 145, 152 [1949]; Hogan v Court of Gen. Sessions of County

of N.Y., 296 NY 1, 9 [1946]). The limitation of CPL 440.10 (2)

(c)'s procedural bar to cases of "unjustifiable" failure may be

seen as a codification of the rule stated in those cases.

We conclude, in short, that defendant was not barred

from raising his right to counsel claim in a CPL 440 motion. We

express no opinion on the merits of the claim.

Accordingly, the order of the Appellate Term should be

reversed and the case remitted to the Appellate Term for

consideration of issues raised but not determined on the appeal

to that court.

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* * * * * * * * * * * * * * * * *

Order reversed and case remitted to the Appellate Term, Ninth and

Tenth Judicial Districts, for consideration of issues raised but

not determined on the appeal to that court. Opinion by Judge

Smith. Chief Judge Lippman and Judges Graffeo, Read, Pigott,

Rivera and Abdus-Salaam concur.

Decided November 18, 2014

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