PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

KA 21-00385
Indictment No: 2016-0742-1

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V LAQUAN KITCHEN, DEFENDANT-APPELLANT.

Defendant having moved for a writ of error coram nobis seeking leave to file and serve a late notice of appeal from a judgment of Onondaga County Court, rendered January 18, 2018,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is hereby ORDERED that the motion is granted, and Gennaro D. Calabrese, Esq. is directed to file and serve the notice of appeal in accordance with CPL 460.10 on or before May 13, 2021.

Memorandum: Defendant's counsel stated on the record at sentencing that he intended to file a notice of appeal on defendant's behalf that afternoon. Rather than filing the notice of appeal, counsel instead filed an "notice of right to appeal" form that he and defendant had executed on the record at sentencing. When defendant applied to this Court for poor person relief and assignment of counsel, he was alerted to the fact that there was no filing of the notice of appeal at the clerk's office. Defendant then made inquiries with the clerk's office but was advised in writing by the chief clerk, right before the statutory one-year period expired, that his counsel had "properly" filed a notice of appeal shortly after his conviction. By the time defendant ascertained that no notice of appeal had actually been filed, he was foreclosed from moving under CPL 460.30. Under these unique circumstances, we conclude that this is a "rare case" in which coram nobis relief is warranted (People v Andrews, 23 NY3d 605, 611 [2014]).

Entered: April 13, 2021

Mark W. Bennett

Clerk of the Court