People v D'Alessandro

Twelve years after having a conviction for kidnapping affirmed on direct appeal, defendant petitioned the Appellate Division a second time for a writ of coram nobis based on ineffective assistance of prior appellate counsel. The Appellate Division deemed the second petition a motion to reargue the previous coram nobis application it denied nine years earlier. 

The issue was whether the Appellate Division had properly characterized defendant's petition as a motion to reargue. A motion to reargue must be based on facts or law overlooked or misapprehended by the court in determining a motion and is not a vehicle to introduce new issues.

The Court of Appeals found that defendant's second petition did not refer to any points overlooked in the previous and raised a new and more substantial theory of ineffective assistance of counsel. The Court of Appeals reversed the Appellate Division and remitted the case for consideration on the merits.

Initially, the People argued that no appeal lies from an Appellate Division order denying reargument. The Court of Appeals recognized that limitation on their jurisdiction but nevertheless heard the the case relying its inherent authority to look beyond the Appellate Division's characterization of the case to determine for itself if a reviewable issue of law exists.

In reaching its decision, the Court rejected the People's argument that the Appellate Division had properly treated defendant's petition as a motion to reargue because it raised the same 'type" of claim. The determinative question was whether the specific argument was the same and overlooked.  

Despite defendant's urging, the Court of Appeals declined to entertain the merits of the case because an ineffective assistance of counsel claim should be first heard in the court in which the allegedly deficient representation occurred.  

People v D'Alessandro, 2009 NY Slip Op 07669 (Full Text)
Decided on October 27, 2009