People v. Emmett

• Decision Date: 26 November 1969
• Citation: 306 N.Y.S.2d 433,25 N.Y.2d 354,254 N.E.2d 744
• Parties: , 254 N.E.2d 744 The PEOPLE of the State of New York, Respondent, v. Eli EMMETT, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 433

306 N.Y.S.2d 433

25 N.Y.2d 354, 254 N.E.2d 744

The PEOPLE of the State of New York, Respondent, v. Eli EMMETT, Appellant.

Court of Appeals of New York.

Decided Nov. 26, 1969.

Mattew Muraskin and James J. McDonough, Mineola, for appellant.

William Cahn, Dist. Atty. (Henry P. DeVine, Mineola, of counsel), for respondent.

FULD, Chief Judge.

This appeal presents the question whether a defendant is effectively deprived of his right to an appeal where the Appellate Term has decided against him without allowing his attorney an opportunity to prepare and submit a brief.

Tried in the District Court of Nassau County by a judge without a jury, the defendant was found guilty of issuing a worthless check of some $51 and sentenced to 10 days in jail, execution being suspended. On appeal to the Appellate Term, the defendant, through his lawyer, sought a reversal on two grounds--first, that the evidence failed to establish his guilt and, second, that he had not intelligently waived his rights to counsel and to a trial by jury. ¹ The Appellate Term, withholding final decision, remitted the case to the trial court for a hearing as to whether the defendant had 'understandingly, voluntarily and consciously' waived his rights.

At the hearing thus directed, the District Court Judge found, on the basis of ample evidence, that the defendant had, in fact, knowingly waived his jury trial right, as well as his right to counsel, and his 'report' to that effect was transmitted to the Appellate Term in June, 1968, where it was added to the record already before that court. The defendant applied for, and was granted, an order providing him with a free copy of the hearing minutes. However, prior to counsel's receipt of those minutes, the Appellate Term issued an order affirming the judgment of conviction. The defendant's counsel immediately moved for reargument, vacatur of the order of affirmance and leave to file a brief; he averred that he had been misled by a court clerk into the belief that he had two weeks within which to submit a brief and that, lacking a copy of the minutes, he was not able to present his argument in support of his client's position. The Appellate Term denied the application and the defendant appeals from its affirmance of the conviction.

In arguing for an affirmance, the District Attorney does not deny that, as a general rule, an appellant has a right to file a brief in support of his appeal but he maintains that, under the facts of this case, the defendant was not prejudiced. He points out that the defendant himself had acknowledged at the hearing that he had been informed of his rights, had stated that he wanted to represent himself and that he did not desire a jury trial. The fact that the defendant's appeal may have lacked merit did not, however, justify the Appellate Term's refusal to allow his counsel an opportunity to prepare and submit a brief. Implicit in the right of a defendant to appeal (see People v. Borum, 8 N.Y.2d 177, 203 N.Y.S.2d 84, 168 N.E.2d 527) and to have counsel on that appeal (see ...