
    The People of the State of New York, Respondent, v. Samuel Montgomery, Appellant.
    Argued January 22, 1969;
    decided February 27, 1969.
    
      Julia P. Heit and Anthony F. Marra for appellant.
    The State’s -failure to provide appellant with counsel during the time period -in which he had to file a notice of appeal and perfect the appeal constituted a denial of his right to counsel under the Sixth and Fourteenth Amendments. (People v. Kling, 19 A D 2d 750, 14 N Y 2d 571; People v. Lampkins, 21 N Y 2d 138; People v. Ramsey, 23 N Y 2d 656; People v. Ludwig, 16 N Y 2d 1062; People v. Adams, 12 N Y 2d 417; People v. Marchese, 14 N Y 2d 695; People v. Tomaselli, 7 N Y 2d 350; Griffin v. Illinois, 351 U. S. 12; People ex rel. Hirschberg v. Orange County Ct., 271 N. Y. 151.)
    
    
      Burton B. Roberts, District Attorney (Barry L. Mendelson and Daniel J. Sullivan of counsel), for respondent.
    Defendant’s petition was properly - denied without a hearing. (People v. 
      Price, 262 N. Y. 410; People v. Weeks, 16 N Y 2d 896; Peofle v. Kling, 19 A D 2d 750, 14 N Y 2d 571, 381 U. S. 920; People v. Marchese, 19 A D 2d 728,14 N Y 2d 695, 381 U. S. 910; People v. Walker, 17 N Y 2d 433; People v. Ramsey, 23 N Y 2d 656; Peofle v. Hairston, 10 N Y 2d 92; People v. Hill, 8 N Y 2d 935; People v. Lampkins, 21 N Y 2d 138; Peofle v. Ludwig, 16 NY 2d 1062.)
   Keating, J.

Samuel Montgomery, a teenager of 15, along with two friends, Robert May and Russell Corley, became involved in a street melee with two other boys which quickly escalated from an argument to fisticuffs to knife wielding. As a result of this street brawl, Montgomery and his companions were indicted for fatally stabbing one of the boys whom they encountered on the evening of August 2, 1957. Montgomery was the alleged brandisher of the knife.

Each defendant was represented by court-appointed counsel at their joint trial. The jury returned verdicts of second degree murder against Montgomery and May, but acquitted Corley. On December 30,1957 Montgomery and May were each sentenced to 25 years to life in State prison.

May’s attorney filed a timely notice of appeal from the judgment of conviction. The Appellate Division (First Department) modified May’s conviction and reduced the crime to manslaughter in the second degree and imposed a sentence of 7% to 15 years. (9 A D 2d 508.)

A notice of appeal was not filed in Montgomery’s behalf. On July 18,1967, however, he applied for a writ of error coram nobis alleging that, because of his indigency, ignorance and infancy at the time of his conviction, he was precluded from seeking appellate review. He contends that neither court-appointed counsel nor anyone else informed him of his absolute right to appeal from his judgment of conviction. He casts the onus for his failure to prosecute an appeal at the door of the State. He claims that, because he was an indigent, the People had an obligation to inform him of this valuable right. Defendant sought to be resentenced in order that an appeal might be taken from the judgment of conviction.

The Supreme Court, Bronx County, denied Montgomery’s application without a hearing on August 14, 1967, relying on People v. Kling (14 N Y 2d 571) and Peofle v. Marchese (14 N Y 2d 695). The Appellate Division (First Department) unanimously affirmed without opinion.

Since we have today swept away the remains of Kling and Márchese (People v. Callaway, 24 Y Y 2d 127) we must decide petitioner’s claim unencumbered by these prior precedents.

The issue raised by this appeal is whether the petitioner’s allegation that he was not informed of his right to appeal presents an issue of fact which requires a hearing in order to determine the veracity of the contention. A coram nobis hearing is required only if we determine that the allegation states a ground for relief either because the defendant’s appeal was frustrated by the action of his counsel or if, under the Fourteenth Amendment, it is impermissible for the State to fail to assure that an indigent defendant is informed of his right to appeal. If either or both of these grounds are sufficient, the petitioner must be accorded a hearing and, if his contention proves true, his right to appeal must be reinstated.

The time has come for us to announce clearly that every defendant has a fundamental right to appeal his conviction and that, accordingly, basic fairness and due process require that the right not be dissipated either because the defendant was unaware of its existence or counsel failed to abide by a promise to either file or prosecute an appeal. This determination in no way indicates that courts should or can attempt to second guess counsel. Our decision, very simply, demonstrates a fundamental concern that defendants be informed of their right to appeal, and that, where an attorney, whether assigned or retained, fails to apprise his client of this vital privilege, there is no justification for making the defendant suffer for his attorney’s failing.

The same result is required if this defendant’s claim is analyzed in terms of equal protection.

Since the State has provided an absolute right to seek review in criminal prosecutions it constitutionally follows that an indigent defendant cannot be deprived of this review simply because of his poverty. (See People v. Ramsey, 23 N Y 2d 656; People v. Ludwig, 16 N Y 2d 1062; People v. Hairston, 10 N Y 2d 92; People v. Pitts, 6 N Y 2d 288; Anders v. California, 386 U. S. 738; Swenson v. Bosler, 386 U. S. 258; Long v. District Ct., 385 U. ,S. 192; Douglas v. California, 372 U. S. 353; Griffin v, Illinois, 351 IT. S. 12.) The condition precedent to appellate review of a criminal prosecution is the filing of a notice of appeal. It is apparent that the 30-day period in which an appeal must be docketed is a critical time for the defendant. It cannot be successfully argued that an indigent defendant does not have the right to counsel at this stage of his proceedings (see Hamilton v. Alabama, 368 U. S. 52).

It is not clear that, at the time this defendant was convicted, there was any positive obligation imposed on assigned counsel to inform defendants of their right to appeal. (People v. Kling, 19 A D 2d 750, affd. 14 N Y 2d 571, but see former Rule 9 of the Administrative Board of the Judicial Conference.) Presently, the rules of the Appellate Divisions do provide such an obligation.

Even with this obligation, however, we do not believe that an indigent defendant can lose his right to appeal simply because the State delegates its responsibility to a member of the Bar to pass along the requisite information. The courts are the surrogates of the State’s responsibility in this field. An indigent defendant cannot lose his right to appeal simply because the courts have deputized a lawyer to fulfill the function and he has failed properly to carry out his duties.

The petitioner, because of his indigency, was compelled in this case to accept the assistance of court-appointed counsel. He claims his counsel did not inform him of his right to appeal. Without such advice this petitioner, who had no previous experience with the law, could not be expected to file a notice of appeal. There is no question that the primary duty of furnishing legal advice to indigent defendants is a State responsibility. Either by permitting assigned counsel’s role to terminate at the end of trial, or'failing to provide safeguards against lack of information, the State permitted a critical time period to lapse of which the defendant was unaware. Since this lack of awareness occurred because of the defendant’s poverty, he must be accorded a hearing to determine whether in fact no one informed him of Ms right to appeal. If, at the hearing, it is determined that he was not told of his rights, then clearly he was denied the ‘ ‘ equal protection ’ ’ of the law. If his allegations prove to be meritorious, he should be resentenced so that Ms time to appeal will run anew. (People v. Callaway, supra; People v. Hairston, supra.)

Accordingly, the order of the Appellate Division should be reversed and the proceedings remitted to the Supreme Court, Bronx County, for the purpose of holding a hearing limited to the question of whether the defendant’s failure to serve and file a notice of appeal was attributable to the failure of Ms assigned counsel to advise Mm of his right to appeal.

Breitel, J. (dissenting).

In a particularly vicious and, by civilized standards, insufficiently provoked street fight, this defendant’s victim, a youth like himself, was stabbed four times, once in the back. The facts are detailed in the opinion of the Appellate Division in the related case of People v. May (9 A D 2d 508), in wMch a codefendant’s conviction was reduced from murder in the second degree to manslaughter in the second degree, and the sentence reduced to 7½ to 15 years.

TMs defendant and two others were jointly tried for murder in the first degree and, under the law then extant, would have been exposed to a sentence of death if convicted. The jury acquitted one of the defendants, Corley, but convicted Montgomery and May of murder in the second degree. Only May appealed. The Appellate Division reduced Ms conviction and sentence. It held that the evidence was insufficient to establish that May had formed a murderous intent. It was also pointed out that the verdict was inconsistent in acquitting Corley, since Ms knowledge of the events concerning the street fight, and his participation, were exactly the same as May’s. It was emphasized that unless May knew ‘ beforehand that in tMs fight Montgomery would use a knife to kill he could not be convicted of murder unless he continued in the fight with intent to kill after he had knowledge of the use of the knife for that purpose. Mere failure to stop Montgomery would not spell out a murder. And if, as the People say on appeal, the intent by Montgomery to kill was formed at the instant ’ of the killing, the record does not show adequate opportunity by May thereafter to become aware of such an instantly formed purpose by Montgomery or that he acted or it toward consummating the homicide.” (9 A D 2d, supra, p. 512.)

Montgomery, not having taken an appeal, evidently now believes that he, too, might have benefited by an appeal. At the very least, he argues that May’s successful appeal indicates that an appeal in his case would not be frivolous. From the brief narration, it is obvious that Montgomery’s situation, as the actual killer, is quite different from that of May. It also explains why Montgomery took no appeal, and why the different sets of lawyers representing the two convicted defendants chose to appeal in the case of the one and not in the case of the other. It should also be kept in mind that in 1957, if there were a reversal and a new trial, defendant Montgomery might still have been convicted of a capital crime. It is obvious that Montgomery’s lawyers instead of abandoning ” him, whatever that means, had done quite well for him since he was the one who stabbed the decedent youth fatally. In the case of May, on the other hand, his chances on appeal and possible retrial were less risky; something might be gained and indeed was.

The defendant does not claim that his three court-assigned lawyers promised to take an appeal for him and then failed to do so (cf. People v. Callaway, 24 N Y 2d 127; People v. Ramsey, 23 N Y 2d 656, revg. on the dis. opn. of App. Div. 28 A D 2d 1101). Bather his grievance is that neither the court nor his lawyers advised him of his right to appeal. As the majority observes there was no mandated responsibility on the lawyers in 1957 to so advise a convicted defendant and until today there was no obligation on the court. To top it off,, there is no affidavit from any of his former lawyers or any explanation why such affidavits are not submitted. Certainly, in a case like this there should be such a requirement (cf. People v. Scott, 10 N Y 2d 380). (Of course, it is incredible that one or another of his lawyers did not advise with 'him, or that he was not exposed to knowledge of the consultations between Ms codefendant and the latter’s lawyers — also three in number.)

It is unfortunate that the bare and incredible allegations in this case, without supporting affidavits, should entail a hearing. But perhaps, most important, the court is announcing, in broad language, what is tantamount to a retroactive automatic extension of time to appeal, and an underwriting of the conduct of counsel in advising as to the right to an appeal, both when the court assigns counsel to represent an indigent defendant, and when counsel is privately retained. As the majority notes, the problem is of less significance for the future, because of the curative rules adopted by the several Appellate Divisions, which will prevent postconviction false assertion of lack of opportunity or knowledge to take an appeal. Under the rules the advice must be in writing.

It would be callous, indeed, to ignore that Montgomery, in light of -his age, received a harsh, although all but mandatory, sentence. That, however, is a circumstance of the particular case, for which there are other remedies, particularly that of executive clemency, if his prison record would justify clemency. The harsh sentence is no reason for condoning false applications or creating unwise rules of general application.

Accordingly, I dissent and vote to affirm. At the very least, there should be an affirmance, without prejudice to defendant’s bringing on a new application with supporting affidavits by his former lawyers, or in lieu thereof, an explanation for the absence of such affidavits.

Chief Judge Fuld and Judges Burke and Bergan concur with Judge Keating; Judge Breitel dissents and votes to affirm in an opinion in which Judges Soileppi and Jasen concur.

Order reversed and case remitted to Supreme Court, Bronx County, for a hearing in accordance with the opinion herein. 
      
       Rules of .the Supreme Court, Appellate Division, First Department, Pt. 7, rule V (2) (a), (2) (b), (3); 22 NYCRR 606.5 Rules of the Supreme Court, Appellate Division, Second Department, Pt. 2, rule III 22 NYCRR 671.3; Rules of Practice of the Supreme Court, Appellate Division, Third Department, Duties of Counsel in Criminal Actions and Habeas Corpus Proceedings, rule 2 22 NYCRR 821.2; Rules of the Supreme Court, Appellate Division, Fourth Department, Rules Relating to Attorneys, rule X 22 NYCRR 1022.13,
     
      
      . The provocation was the unsatisfactory answer of the victim’s companion, Vaughn, as to where he lived when asked by Montgomery’s codefendant Corley. Vaughn ran away after being struck.
     
      
      
        . That was the law in 1957 (People v. Ercole, 4 N Y 2d 617, 621; see People v. Ressler, 17 N Y 2d 174, 179).
     