Opposition Brief — Scully v. Claudio

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eupreme Court, U.S,

FILED

APR 27 1993

OF; Woe i i | i Ci ro

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Dertiesasattisshittereiatnineeses

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No. 92-1582

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

CHARLES SCULLY, Superintendent

Greenhaven Correctional Facility,

Petitioner,

-V-

ANGEL CLAUDIO,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

WILLIAM E. HELLERSTEIN*

PROSKAUER ROSE GOETZ &

MENDELSOHN

1585 Broadway

New York, N.Y. 10036

(212) 969-3000

Attorneys for Respondent

*Counsel of Record for Respondent

Fae ET

QUESTIONS PRESENTED

1. Whether the Second Circuit erred in holding that

respondent had a Sixth Amendment right to counsel on his pretrial

appeal to the New Ycrk Court of Appeals from the Appellate

Division’s reversal, on “he prosecution’s appeal, of the trial court’s

suppression ruling in respondent’s favor.

2. Whether the Second Circuit erred in holding that

respondent’s Sixth Amendment right to the effective assistance of

appellate counsel was violated when his attorney failed to raise, in

the New York Court of Appeals, a State constitutional right to

counsel claim which, though decided adversely by the Appellate

Division, presented a question of first impression, and was

supported by numerous Court of Appeals’ precedents. 4

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......... Sere)

TABLE OF AUTHORITIES .................-.-. ii

FURIRDUETION .... 5. oe ce coe cence naan

STATEMENT OF THECASE ....... eer:

REASONS WHY THE PETITION SHOULD BE DENIED . 2

1. The Second Circuit’s determination, that on his

pretrial appeal to the New York Court of Appeals,

respondent had a Sixth Amendment right to counsel,

is correct under this Court’s prior rulings, including

Ross v. Moffitt, 417 U.S. 600 (1974), and it does

not, therefore, raise any question that merits

IN 6g eae se 2h esther eee 2

2. The Second Circuit’s ruling, that by failing to

protect his client’s rights under state law, a lawyer

can deprive his client of his Sixth Amendment right

to the effective assistance of counsel, is correct, and

does not merit review .........2cc0cc2es 5

3. The Second Circuit’s decision, that on the facts of

this case, respondent was denied his Sixth

Amendment right to the effective assistance of

counsel, is correct and presents no question of

significance to Sixth Amendment jurisprudence or to

federalism that merits review .............. 7

RE Sno ck vv nw es ee a eee 12

TABLE OF AUTHORITIES

Cases Page

Bishop v. Wood,

I kk x aw se a a ose 8 8 10

Butler v. McKellar,

ee ahs we el alu bbe «Ks e os 4

Claudio v. Scully,

ok gd Se wavs ws 6 he ee l

Coleman v. Alabama,

a a ae 2

Coleman v. Thompson,

ee 4

-Evitts v. Lucey,

ee re 7

Frisby v. Schultz,

sew ee ee 10

Hamilton v. Alabama,

er a

Jones v. Barnes,

eg pk ee eee ee ee a

Kimmelman v. Morrison,

en pa pe ee kt ee ee 6

Kirby v. Illinois,

ee ak eke wk ee 4

People v. Beam,

Br ta. 0 a0 ool, 455 N.Y.S.20 S75 (1982) ........ 10

People v. Bing,

76 N.Y.2d 331, 559 N.Y.S.2d 474 (1990) ......... 7

People v. Kinchen,

60 N.Y.2d 772, 469 N.Y.S.2d 680 (1983) ........ 1]

People v. Santorelli,

80 N.Y.2d 875, 587 N.Y.S.2d 601 (1992) ........ 1]

Planned Parenthood v. Casey,

AG Se Ms f. «Saaremaa are ee trae oe 10

Ross v. Moffitt,

re ee EE can ak ee aS ae ee 2-4

Smith v. Murray,

es I os ens 0 hn Dg ge ee ee 6

Stone v. Powell,

ee es OE. ss oo we 8 ee a eee 6

Strickland v. Washington,

nn: I, ck yu np 0 Bee eee wo ee kA 7

Teague v. Lane,

Se ED. yb 5X 0 4 4 0 0 a8 bee ee ee 4

United States v. Ash,

of fe Se 0) arr me ere 4

United States v. Wade,

BR rae 2,3

Wainwright v. Torna,

ee a SO nc kc ks Cy he ee Oe ae oe 4

West v. American Tel. & Tel. Co.,

ee Se: ee EE enc es was eee eee 8

—————

Vv Page

Withrow v. Williams,

eS Se oe 6

Statutes

os ee ee are ere ee ye I

N.Y. Crim. Proc. Law §450.50 (McKinney 1983) ........ 3

N.Y. Crim. Proc. Law §470.35 (McKinney 1983) ....... 1]

| ’

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

No. 92-1582

CHARLES SCULLY, Superintendent

Greenhaven Correctional Facility,

Petitioner,

-V-

ANGEL CLAUDIO,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

The Respondent, Angel Claudio, respectfully requests that this

Court deny the Petition for Certiorari seeking review of the Second

Circuit’s decision in this case. The Court’s opinion is reported at

982 F.2d 798 (1992) and is set forth at pages 3a-35a of the

Petition.

JURISDICTION

Petitioner invokes the jurisdiction of this Court under 28

U.S.C. §1254(1).

STATEMENT OF THE CASE

Respondent adopts the statement of facts in the majority

opinion of the Second Circuit set forth at Pet. App. 5a-10a.

REASONS WHY THE PETITION SHOULD BE DENIED

1. The Second Circuit’s determination, that on his

pretrial appeal to the New York Court of Appeals, respondent

had a Sixth Amendment right to counsel, is correct under this

Court’s prior rulings, including Ross v. Moffitt, 417 U.S. 600

(1974), and it does not, therefore, raise any question that merits

review.

Petitioner’s contention that the "Second Circuit has created a

major new exception to the rule of Ross v. Moffitt, 417 U.S. 600

(1974)" (Pet. 7), misstates the issue, misreads Ross, and ignores

entirely this Court’s rulings that guarantee criminal defendants the

right to counsel at all critical stages of the proceedings against

them. See United States v. Wade, 388 U.S. 218, 227 (1967);

Coleman v. Alabama, 399 U.S. 1, 7 (1970); Hamilton v. Alabama,

368 U.S. 52, 54 (1961).

Contrary to petitioner’s claim (Pet. 9, 10), Ross v. Moffitt did

not, irrespective of the stage of the criminal process at which a

discretionary appeal is taken, purport to create a rule governing all

such appeals. Then Justice Rehnquist, writing for the Court,

articulated the critical distinction between the post-conviction

appellate process, in which the defendant is "seeking not to fend off

the efforts of the State’s prosecutor but rather to overturn a finding

of guilt made by a judge or jury below," and the pretrial stages of

a criminal prosecution, in which the defendant "needs an attorney

... tO protect him against being ‘haled into court’ by the State and

stripped of his presumption of innocence...." Ross v. Moffitt, 417

U.S. at 610-11.

The Second Circuit assessed correctly the soundness of this

distinction and applied the Ross holding appropriately in this case.

As the court pointed out, respondent’s appeal to the New York

Court of Appeals was part of the pretrial process at which he was

still entitled to the presumption of innocence and at which he was

entitled to contest the admissibility of evidence against him. Pet.

App. 13a. It was also the final phase of an appellate process that

the prosecution, not he, had initiated. Jd. Because the trial court

had suppressed respondent’s confession, not only did the

prosecution have to appeal, they were required by New York Law

to certify that without the confession, the case against respondent

could not go forward. N.Y. Crim. Proc. Law §450.50 (McKinney

1983); Pet. App. 12a. To argue, as petitioner does, that in this

circumstance a defendant can be required to go it alone, is fanciful.

Both the language and logic of Ross dictate that the critical

factor as to whether the Sixth Amendment right to counsel attaches

at a pretrial stage of a criminal proceeding is not whether the

defendant’s appeal is discretionary but whether the appeal is a

critical stage of the pretrial process. Not only does Justice

Rehnquist’s "shield-sword" metaphor apply directly to any critical

stage of the trial process, this Court, in deciding "criticalness," has

always focused on whether "[w]hat happens ... may affect the

whole trial," Hamilton v. Alabama, 368 U.S. at 54, and whether

"potential substantial prejudice to defendant’s rights inheres in the

... ability of counsel to help avoid that prejudice." United State v.

Wade, supra, 388 U.S. at 227.

Petitioner is simply wrong, therefore, in asserting that "the

rationale of Ross is applicable to any second-level discretionary

appeal, whether it occurs before or after trial." Pet. 9. To ignore

the distinction between a discretionary post-conviction appeal by a

defendant who is seeking to overturn his conviction, and a

discretionary pretrial appeal in which the defendant seeks to

preserve the trial court’s suppression ruling in his favor would

create the following illogical, and arguably ludicrous, pretrial

scenario.

Under petitioner’s theory, an indicted defendant who,

indisputably, has a right to counsel at arraignment, at any post-

indictment identification procedure, at all pretrial suppression

hearings and on an interlocutory appeal by the prosecution, may

have that chain of representation broken when he is granted review

by the State’s highest court of the intermediate court’s interlocutory

ruling. But once he loses that appeal and the case is remanded for

trial, his constitutional entitlement to counsel, as it must, resumes

and remains in place through completion of his initial post-

Setar

conviction appeal. That this hiatus in representation occurs at the

most significant pretrial event ir. the case — the decision by the

State’s highest court as to whether the prosecution can proceed —

does not trouble petitioner is one thing; that it is an acceptable part

of the landscape of the criminal process that Ross v. Moffitt, or any

decision of this Court, contemplates, is quite something else.

Petitioner's equation of respondent’s post-indictment, pretrial

appeal, the sole purpose of which was to reinstate the trial court's

suppression order, with pre-indictment, non-custodial questioning

(Pet. 10), further exposes the weakness of petitioner’s argument.

Petitioner can point to no case in which this Court has held the

Sixth Amendment counsel guarantee inapplicable to any post-

indictment stage of the proceeding other than the post-conviction

discretionary appeal in Moffitt, and the certiorari and collateral

attack proceedings in Wainwright v. Torna, 455 U.S. 586 (1982),

and Coleman v. Thompson, 111 S. Ct. 2546 (1991). Indeed, even

at pretrial stages where counsel’s advocacy role is much more

circumscribed than it is on a defendant’s pretrial appeal to a state's

highest court, the Sixth Amendment’s right to counsel is

indefeasible. See Kirby v. Illinois, 406 U.S. 682 (1972). See also,

United States v. Ash, 413 U.S. 300, 310 (1973).

In sum, not only does the Second Circuit's decision create no

exception to any rule announced in Ross v. Moffitt, it falls easily

within the Ross rationale. Because the decision is also fully

consistent with the many decisions mandating that the Sixth

Amendment guarantees a defendant the right to counsel at all

critical stages of the proceedings, it has established no "new rule"

and thus raises no question that implicates the principles of Teague

v. Lane, 489 U.S. 288, 299 (1989) (plurality op.), or Butler v.

McKellar, 494 U.S. 407 (1990), and its progeny.

Contrary to petitioner’s assertion, the Second Circuit’s ruling

will not “open the doors of the federal courts to a substantial

number of new challenges to state criminal convictions." Pet. 11.

All that petitioner musters in support of his floodgate-like argument

is his statement that "pretrial appeals from rulings suppressing

evidence or dismissing indictments are not at all unusual." /d. It

should be apparent, however, that this case does not involve all

pretrial appeals by the prosecution.

As there is already a federal constitutional right to counsel on

a first appeal, even when it is post-conviction, all that this case

concerns are those few appeals, in states which have a two-tier

appellate process, in which at least eight events must occur: (a) the

intermediate appellate court has reversed a suppression or dismissal

ruling adverse to the prosecution, (b) the State’s high court has

granted review, (c) the State’s high court has affirmed the

intermediate appellate court’s ruling, (d) the defendant is convicted,

(e) the conviction is affirmed on appeal at both levels of the State’s

appellate process, (f) the defendant claims that his representation

before the State’s high court on his pretrial appeal was

constitutionally inadequate, (g) the defendant adequately presents

that claim to the State courts and (h) the State court rejects the

claim.

Therefore, to reach a federal habeas court in a case such as

this, the preconditions are so numerous that a duplication of its

procedural history would be extremely rare. That petitioner has

failed to point to any case that comes close to replicating this one

attests to its highly unique procedural posture. Consequently, the

Second Circuit’s decision will have little, if any, impact on the

work of the federal courts.

Petitioner also has pointed to no decision of any court with

which the Second Circuit’s decision conflicts. For these reasons,

review by the Court is unwarranted.

2. The Second Circuit’s ruling, that by failing to protect

his client’s rights under state law, a lawyer can deprive his

client of his Sixth Amendment right to the effective assistance

of counsel, is correct, and does not merit review.

In determining that respondent’s Sixth Amendment right to the

effective assistance of counsel was violated by his attorney’s failure

to raise a viable State constitutional claim, the Second Circuit cited

five cases that accept the proposition that an ineffective assistance

claim can be predicated on an attorney’s failure to secure rights

afforded by state law to his or her client. See Pet. App. 13a, n.5.

Petitioner strains mightily to separate these cases from that logical

principle by labeling them as cases in which “the omitted claims

had roots in federal as well as state law." Pet. 12.

Apart from the fact that none of these decisions even discussed

"roots," the underlying principle, that counsel’s failure to protect

a client’s state constitutional and statutory entitlements can ‘violate

the Sixth Amendment, is so fundamentally sound as to merit little

discussion. To conclude otherwise, would be to accept the

proposition that, no matter how inept counsel’s performance may

be, the Sixth Amendment guarantee of effective assistance can

never be implicated when such ineptitude results only in the loss of

a defendant’s state law rights. Though he dissented for other

reasons, Judge Newman also rejected this argument, stating his

agreement with the majority “that the federally guaranteed right to

the effective assistance of counsel includes some obligation of

counsel to assert claims and defenses grounded in state as well as

federal law." Pet. App. 24a.' Since petitioner cites no contrary

Judge Newman appears unnecessarily hesitant in so concluding. He

acknowledges that language in Smith v. Murray, 477 U.S. 527

(1986), lends support to his conclusion. He could have found even

greater support, however, in Kimmelman v. Morrison, 477 U.S. 365

(1986). In that case, the Court held that although Stone v. Powell,

428 U.S. 465 (1976), precludes the availability of federal habeas

corpus for Fourth Amendment violations, habeas corpus remains

available for Sixth Amendment ineffective assistance claims that are

predicated on counsel's failure to protect a defendant's Fourth

Amendment rights. The same logic applies here because, as in

Kimmelman, the common denominator is the Sixth Amendment's

guarantee of effective assistance, not the source of the substantive

right forfeited by counsel's incompetence. After Stone v. Powell, for

federal habeas purposes, a substantive Fourth Amendment claim is

as unavailable as a state law claim always has been. Insofar as

Kimmelman affords habeas relief where the predicate for ineffective

assistance nonetheless is grounded in the Fourth Amendment, its

logic commands the same result when the predicate is grounded in

state law. See Withrow v. Williams, 1993 WL 119753 (U.S.) 4

(continued...)

authority, there exists no reason for this Court to address it.

3. The Second Circuit’s decision, that on the facts of this

case, respondent was denied his Sixth Amendment right to the

effective assistance of counsel, is correct and presents no

question of significance to Sixth Amendment jurisprudence or

to federalism that merits review.

It is settled beyond dispute that the Sixth Amendment

guarantees a defendant the right to the effective assistance of

counsel on appeal. Evitts v. Lucey, 469 U.S. 387, 394-97 (1985).

The only question, therefore, is whether the court below applied

that principle correctly to the facts of the case. Because the issue

is fact-specific, there is no reason for the Court to depart from its

general practice of not reviewing discrete factual applications of

undisputed constitutional principles.

The Second Circuit’s determination that respondent’s counsel’s

failure to raise his State constitutional claim fell “outside the wide

range of professionally competent assistance" (Pet. App. 18a)

required by Strickland v. Washington, 466 U.S. 668, 690 (1984),

was correct. By 1983, no attorney practicing criminal law in New

York could fail to raise a State right to counsel claim in a case such

as this and be deemed to have rendered effective assistance. By

then, the New York Court of Appeals’ record of construing the

State constitutional right to counsel more broadly than this Court

had construed the Sixth Amendment right was legendary and a

matter of common knowledge to competent practitioners. See

People v. Bing, 76 N.Y.2d 331, 351, 559 N.Y.S.2d 474, 486

(1990) (op. of Kaye, J.) ("[o]ver the past several decades, this

court applying the New York State Constitution evolved a body of

law that ‘constitute[s] the strongest protection of the right to

counsel anywhere in the country.’").

Indeed, in this case, the District Attorney and the Appellate

'(...continued)

(Kimmelman rests on fundamental distinction between Fourth

Amendment which confers no trial right and Sixth Amendment,

which does).

Division both recognized that the right to counsel provision of

Article I, §6 of the New York Constitution was directly implicated.

Pet. App. 72a, 73a. The prosecutor raised and briefed the issue

fully and the Appellate Division conceded not only that

respondent’s State right to counsel had attached when respondent

confessed, but whether it had been violated was a "question of first

impression." Pet. App. 73a. Only respondent’s appellate counsel

failed to recognize the importance of the State Constitution. That

he continued to do so on respondent’s appeal to the Court of

Appeals and filed a brief that the court below found "was nearly

identical to the brief he submitted to the Appellate Division, and

contained no new information or arguments to refute the Appellate

Division decision," (Pet. App. 19a), is what rendered his

representation so egregious.”

Judge Newman errs (Pet. App. 31a, 32a) when he argues that

solely because the Appellate Division decided the State

constitutional claim adversely to respondent, respondent’s attorney

cannot be faulted for not raising it in the New York Court of

Appeals.

First, as Judge Newman recognized, this Court’s decision in

West v. American Tel. & Tel. Co., 311 U.S. 223 (1940), which

held that a state intermediate appellate court’s state law

The Court of Appeals brief was a virtual replica of counsel's

Appellate Division brief. It contained the same typographical errors

as did the Appellate Division brief and made inappropriate

references, such as referring to “this court" when citing to an

Appellate Division decision. All that differentiated the Court of

Appeals brief from the Appellate Division brief was the cover page.

A competent attorney would not submit to the State’s highest court

a brief which, in haec verba, replicates the losing brief in the lower

court. A competent attorney would not disregard the lower court's

favorable concession that the state constitutional right had attached,

especially when simultaneously, the court had held that the Sixth

Amendment right to counsel had not attached. A competent attorney

would not fail to make even the slightest reference to the

intermediate court's ruling. Respondent's counsel failed on each of

these counts.

determinations are applicable in the same case and to the same

parties in federal court, “is not precisely applicable to a case such

as this where the question is whether appellate counsel was

constitutionally deficient in failing to seek reversal of the

intermediate court’s decision....". Pet. App. 32a, n.9.

Second, Judge Newman’s acknowledged "per se position" (id. )

is premised both on an erroneous assessment of the function of

appellate counsel and of the institutional role of the New York

Court of Appeals. To insist that an attorney can never be

constitutionally ineffective when for no strategic purpose he

abandons, on appeal to New York’s highest court, an issue that the

Appellate Division has denominated one of first impression,

deprecates the essence of appellate counsel’s role on such an

appeal. It is a perspective that overlooks entirely that the Appellate

Division’s decision, in the Court of Appeals’ judgment, may be

completely erroneous.

One need not catalogue the hundreds, perhaps thousands of

cases, in which the Court of Appeals has, over the years, reversed

Appellate Division rulings because they were based on misreadings

of New York law. The Court of Appeals sits, as does this Court,

to review in its discretion, cases that it considers to raise legal

issues of general importance. Foremost among such matters are,

by definition, “questions of first impression,” which affect the

interpretation of the State’s Constitution. The Appellate Division’s

interpretation of the Constitution, in the very case which the Court

of Appeals grants review, can never constitute the final word. That

is the institutional prerogative of the Court of Appeals.

Consequently, to argue as do petitioner and Judge Newman that, in

the presentation of a case to the Court of Appeals, defense counsel

always may ignore the issue of the correctness of the Appellate

Division’s ruling and never be deemed incompetent for doing so,

is illogical. It is precisely because the business of any State’s high

court is to correct intermediate appellate court error that counsel’s

abandonment of a meritorious claim cannot be deemed competent.

When no reason of strategy justifies its abandonment, counsel’s

obligation can be nothing less than to seek reversal of the

intermediate court’s ruling. Cf. Jones v. Barnes, 463 U.S. 745

(1983).

Moreover, contrary to Judge Newman’s view (Pet. App. 33a),

the role of a federal habeas court is not "broadened" when it

undertakes to determine the competence of counsel’s decision to

abandon, in the State’s highest court, a viable state constitutional

claim. That to assess the competence of counsel’s performance a

federal court may have to examine state law imposes no new task

on the court. As is true of any case in which the violation of any

federal constitutional right has, as its referent substantive state law,

a federal habeas court cannot avoid determining the meaning of

state law in this context as well. See, e.g., Bishop v. Wood, 426

U.S. 341 (1976). Indeed, unless the interpretation given state law

by the lower federal courts constitutes plain error, this Court will

defer to the lower federal courts because the “district courts and

courts of appeals are better schooled in and more able to interpret

the laws of their respective States." Planned Parenthood v. Casey,

112 S. Ct. 2791, 2822 (1992) (joint op.), quoting Frisby v. Schultz,

487 U.S. 474, 482 (1988).

In this regard, petitioner’s dual claims that (1) respondent’s

counsel was entitled to rely on the intervening Court of Appeals

decision in People v. Beam, 57 N.Y.2d 241, 455 N.Y.S.2d 575

(1982) (Pet. 15), and (2) that the State constitutional claim was not,

because of a procedural bar, raisable in the Court of Appeals (Pet.

16), also fail to enhance his quest for review.

Given this Court’s deference to interpretations of state law by

the lower federal courts, the interpretation given Beam by the

majority below, unless clearly erroneous, should be of little interest

to this Court. That it is not clearly erroneous is apparent from both

the majority’s analysis (Pet. App. 15a-17a), and Judge Newman's

acknowledgment that Beam "is arguably distinguishable, as the

majority in this case contends...." Pet. App. 31a.

The same standard of review applies to petitioner’s state law

procedural bar argument. The majority below interpreted New

York law and concluded that petitioner’s claim was “undermined

by the Appellate Division’s decision to reach the state issue and

respondent’s own brief which argued the merits of the state claim

before the Court of Appeals." Pet. App. 14a, n.7. It also

determined that the cases relied upon by petitioner were

"distinguishable from the case before the court as they do not

involve claims that are strongly related and based on the same set

of facts." Id. Judge Newman, in dissent, also made no claim that

the majority’s understanding of New York law was erroneous. Pet.

App. 35a. As this Court does not concern itself, except in the

rarest instance, with issues of state law, petitioner’s disagreements

with the Second Circuit’s analysis of state law do not warrant the

Court’s attention.’

In sum, this case presents no issues worthy of review by the

Court. It involves nothing more than the factually driven issue of

whether the Sixth Amendment’s guarantee of the effective

It is worth noting, however, that the Second Circuit's

understanding of New York law is sound. In People v.

Santorelli, 80 N.Y.2d 875, 587 N.Y.S.2d 601 (1992), the

Court of Appeals rejected a prosecution claim virtually identical

to the one pressed here. There the defendant had prevailed at

the trial level on a free speech claim. On the prosecution's

appeal, the intermediate appellate court reversed, rejecting the

speech claim and also rejecting the defendant's equal protection

claim. On the defendant's appeal to the Court of Appeals, the

prosecution argued that, under N.Y. Crim. Proc. Law §470.35

(McKinney 1983), the defendant’s equal protection claim was

barred because the prosecution’s appeal was taken only from

the trial court’s free speech ruling. The Court of Appeals

rejected that argument because the equal protection claim "was

expressly passed upon by County Court, and its disposition of

that claim was a necessary basis for its order of reversal of the

Rochester City Court which had dismissed the informations."

Id. at 876.

As to petitioner’s speculation that the Court of Appeals’

disclaimer footnote (Pet. App. 57a), “may invoke the bar of

Crim. Proc. Law § 470.15, because defendant did not raise the

state constitution in the suppression court,” or in the Court of

Appeals (Pet. 19), it is answer enough that the Court of

Appeals has consistently held "that a claimed deprivation of the

State constitutional right to counsel may be raised on appeal,

notwithstanding that the issue was not preserved by having been

specifically raised in a suppression motion or at trial." People

v. Kinchen, 60 N.Y.2d 772, 773, 469 N.Y.S.2d 680, 681

(1983).

assistance counsel was abridged. Its factual and procedural

uniqueness renders it an inappropriate vehicle for the articulation

by the Court of any significant principle of broad application.

CONCLUSION

For these reasons, the petition for a writ of certiorari should

be denied.

Respectfully submitted,