The Second Department, over a dissent, determined defendant’s motion to vacate his conviction on ineffective assistance grounds was properly denied because the issue could have been appealed. Defendant pled guilty to three counts charging robbery second. However the underlying factual allegations for two of the counts only supported robbery third. Defendant was sentenced to consecutive five year terms of imprisonment, one for each robbery second count. The issue was not raised on appeal and a writ of error coram nobis was denied:
FROM THE DISSENT:
I understand that we are constrained by CPL 440.10(2)(2), which provides that a court must deny a motion to vacate a judgment of conviction where the ground or issue raised upon the motion could have been raised on a direct appeal from the judgment of conviction and the defendant unjustifiably failed to do so … . Here, the defendant, although represented by appellate counsel, failed to raise, on his direct appeal, the meritorious issues he now raises on his CPL 440.10 motion … . The defendant filed an application for a writ of error coram nobis, claiming that his appellate counsel was ineffective for failing to raise these issues. However, that application was summarily denied … . Under these unique circumstances, where the defendant has no other apparent avenue of relief in the New York State court system, it would be fundamentally unfair and unjust to apply the procedural bar set forth in CPL 440.10 to his claims.
Accordingly, while I understand the reasoning the majority applies in reaching its determination, I cannot join it, and must respectfully dissent. People v McKenzie, 2017 NY Slip Op 05243, 2nd Dept 6-28-17