(concurring in People v Andrews, and dissenting in People v Kruger). I join the majority in People v Andrews because, as the majority states, Andrews’s petition for a writ of error coram nobis lacked his affirmative assertion that defense counsel failed to inform him about the appellate process or that he asked counsel to file a notice of appeal (majority op at 615-616).
However, of import is defense counsel’s conduct as related to her obligation to inform Andrews of his right to appeal. Counsel’s failure to provide Andrews with written notice, in person or by mail, of his right to appeal was in direct contravention of the rules of the Appellate Division, Second Department (see 22 NYCRR 671.3 [a] [“Upon conviction in the trial court ... it shall be the duty of the counsel for the defendant, immediately after the pronouncement of sentence ... to give, either by mail or personally, written notice to his client advising him of his right to appeal”]).1 Moreover, defense counsel’s conduct is particularly disconcerting because, according to her affirmation, she “ask[ed] Mr. Andrews if he wished to appeal” — no more than a cursory inquiry, lacking any semblance of counsel regarding Andrews’s right to appeal. Nevertheless, Andrews’s submissions were inadequate to support his request for a writ of error coram nobis, and I agree with the majority that the order of the Appellate Division should be affirmed.
*618However, I disagree with the majority’s decision in People v Kruger that defendant may not seek coram nobis relief when counsel fails to file a timely criminal leave application to our Court, despite defendant’s specific request, because such failure “does not necessarily establish” ineffective assistance of counsel or deprivation of due process of law (majority op at 616).2 The majority grounds its decision on the lack of a federal constitutional right to legal representation on a discretionary application for an appeal to our Court.
This reasoning is unpersuasive. It is within our discretion that we determine the expanse of coram nobis and “the longstanding recognition of coram nobis flexibility” (People v Bachert, 69 NY2d 593, 596 [1987]) empowers us to afford relief to a defendant who “has no other procedural recourse” (People v Syville, 15 NY3d 391, 400 [2010]). Here, defendant seeks relief to file an untimely criminal leave application. Denial of the opportunity to exhaust all available avenues for state appellate review has negative consequences that affect defendant’s rights, and potentially forecloses judicial correction of trial and appellate errors. Therefore, I dissent.
Once a state affords appellate review, it must do so in a constitutional manner (see Griffin v Illinois, 351 US 12, 20 [1956]; Evitts v Lucey, 469 US 387, 393 [1985]; People v West, 100 NY2d 23, 28 [2003]). Here, our appellate courts, both the Appellate Division and our Court of Appeals, are “ ‘an integral part of the . . . system for finally adjudicating the guilt or innocence of a defendant’ ” (Evitts, 469 US at 393, citing Griffin, 351 US at 18). Although a defendant has no right to a favorable outcome on appeal, our laws recognize a defendant’s right to request appellate consideration (see generally CPL 460.10).
It is undisputed that defendant sought to invoke his right to appellate review as guaranteed by our state. He asked his appellate counsel to file an application for leave to appeal and, although defense counsel told defendant that he would do so, counsel failed to file a timely criminal leave application. Moreover, counsel did not make a timely request for an extension to file, as provided by our Criminal Procedure Law (see CPL 460.30). As a direct result of counsel’s deficient performance in the exercise of his professional duties and responsibilities to his client, defendant has been denied the opportunity to request review of his conviction from this Court.
*619This denial is not inconsequential for several reasons. First, denial of the right to request review by the highest court of the state due to the mere fact that an attorney failed to comply with a client’s request to file a timely criminal leave application places in question the integrity of our criminal justice system and the fairness of the appellate process. While defendant, of course, could not be certain we would grant leave, his lawyer’s failure has eliminated even that possibility. Second, review by our Court is a meaningful part of New York’s appellate procedure, allowing us to
“consider and determine not only questions of law which were raised or considered upon the appeal to the [Appellate Division], but also any question of law involving alleged error or defect in the criminal court proceedings resulting in the original criminal court judgment, sentence or order, regardless of whether such question was raised, considered or determined upon the appeal to the [Appellate Division]” (CPL 470.35 [1]).
Third, defense counsel’s failure has jeopardized defendant’s potential request for federal habeas relief (Baldwin v Reese, 541 US 27, 29 [2004] [“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies”], citing 28 USC § 2254 [b] [1]). Defendant’s interest in state and federal judicial review of his claims is of no less import and is no less worthy of protection than the interests at stake in Syville.
Defendant only seeks permission to submit a late criminal leave application to our Court. It is our Court that decides the expanse of coram nobis, and I would allow the writ to be used for this limited purpose. The writ is especially warranted where, as here, defendant has been unduly prejudiced due to no fault of his own hut, rather, solely as a result of his counsel’s deficient performance in failing to comply with the ministerial task of filing a timely criminal leave application.
Chief Judge Lippman and Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur with Judge Graffeo; Judge Rivera in a separate concurring opinion.In People v Andrews: Order affirmed.
Chief Judge Lippman and Judges Read, Smith, Pigott and Abdus-Salaam concur with Judge Graffeo; Judge Rivera dissents in an opinion.In People v Kruger: Order affirmed.
*620Chief Judge Lippman and Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur.In People v Patel: Order reversed and defendant’s application for a writ of error coram nobis denied.
. Every department imposes such requirements (see 22 NYCRR 606.5 [b] [First Department]; 22 NYCRR 821.2 [a] [Third Department]; 22 NYCRR 1022.11 [a] [Fourth Department]). These notification requirements imposed on counsel are not insignificant. In the Second Department, counsel’s written notice must inform defendant of “the applicable time limitations with respect to the making of the application for permission to appeal[,] . . . the manner of instituting the appeal and [obtaining applicable transcripts,] and the appellant’s right ... to make application to the appellate court for the following relief: for the assignment of counsel to prosecute the appeal; for leave to prosecute the appeal as a poor person and to dispense with printing; and [obtaining applicable transcripts at no cost]” (22 NYCRR 671.3 [b] [1], [2], [3]). Moreover, counsel’s written notice should “request the written instructions of his client, and if the client thereafter gives counsel timely written notice of his desire [to appeal] . . . counsel shall proceed promptly to do so” (22 NYCRR 671.3 [b] [4]). Every department has similar requirements for counsel’s written notice (see 22 NYCRR 606.5 [b] [1] [First Department]; 22 NYCRR 821.2 [a] [Third Department]; 22 NYCRR 1022.11 [a] [Fourth Department]).
. Like the majority, I take no position on whether Kruger’s coram nobis petition was properly filed with the Appellate Division (majority op at 615 n 2).