People v. Perez, 22 N.Y.3d 95 (2013)

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A criminal defendant’s right to a fair appellate process is not violated when an appeal is dismissed for failure to prosecute after an extended period of neglect, provided the defendant had clear instructions on how to apply for poor person relief and failed to do so; however, an appeal should not be dismissed before assigning counsel and allowing them to review the record.

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Summary

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The New York Court of Appeals addressed four cases involving criminal appeals not pursued for over a decade after filing a notice of appeal. The Court held that dismissing the appeals in Perez, Calaff, and Dockery did not violate the defendants’ constitutional rights, as they had adequate notice of how to obtain counsel at state expense but failed to do so. However, the Court remitted Lopez to the Appellate Division, holding that counsel should have been assigned before the dismissal of the appeal so that the trial record could be reviewed. The Court emphasized the need for an orderly appellate process and that extremely long delays are inconsistent with such a system.

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Facts

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Perez: Convicted of murder in 1996, Perez filed a notice of appeal. His mother hired a lawyer, Johnson, who failed to file a brief. Perez was aware of Johnson’s neglect as early as 2003 when the Disciplinary Committee admonished Johnson. In 2012, Perez retained new counsel, who moved to enlarge the time to perfect the appeal, but the People cross-moved to dismiss it.r

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Calaff: Convicted of attempted burglary in 1993 and sentenced, Calaff was given instructions on requesting assigned counsel if without funds. He filed a notice of appeal but did not request counsel. Later, he was convicted of other crimes, including being adjudicated a persistent violent felon in 2004. In 2012, counsel moved to be appointed on the 1993 appeal. Calaff claimed his original lawyer said,