People v. Farrell
| Decision Date | 16 February 1995 |
| Citation | 623 N.Y.S.2d 550,85 N.Y.2d 60,647 N.E.2d 762 |
| Parties | , 647 N.E.2d 762 The PEOPLE of the State of New York, Respondent, v. Joseph FARRELL, Appellant. Johnny RIVERA, Appellant, v. JUSTICES OF the NEW YORK STATE SUPREME COURT, Respondents. |
| Court | New York Court of Appeals Court of Appeals |
These cases involve defendants who wish to pursue appeals as of right to the Appellate Division from denials, in postjudgment collateral proceedings, of vacatur of final criminal adjudications of guilt. The Legislature in 1971 curtailed such appeals as of right, restricting their availability only to a permissive procedure involving review and allowance by a single Justice of the Appellate Division before a full panel could review the merits (CPL 450.10, 450.15 [L 1971, ch 671]; CPL 460.15; compare, CPL 460.20). Because article VI, § 4(k) of the New York Constitution froze the floor of the jurisdiction of the Appellate Divisions as it was in 1962, appellants claim that chapter 671 of the Laws of 1971 ( §§ 1, 2) transgresses this constitutional limitation on legislative power.
Specifically, in the companion cases before us, we are faced with the denial of motions to vacate criminal judgments of conviction premised on (1) alleged prejudicial prosecutorial misconduct (CPL 440.10[1][f], and (2) alleged ineffective assistance of counsel (CPL 440.10[1][h]. We conclude that article VI, § 4(k) of the New York Constitution does not restrict the Legislature from limiting a defendant's right to appeal from nonfinal postjudgment collateral criminal proceeding orders denying vacatur of final judgments of conviction. Consequently, we uphold the respective orders of the Appellate Division in each case because the Legislature did not violate the article VI restraint.
Defendant sought postjudgment relief, pursuant to CPL 440.10(1)(f), to set aside his affirmed conviction of manslaughter in the first degree (judgment of conviction, Sup Ct, Richmond County, Jan. 4, 1991, aff'd 206 A.D.2d 541, 615 N.Y.S.2d 286, lv. denied 84 N.Y.2d 825, 617 N.Y.S.2d 145, 641 N.E.2d 166). He claimed prosecutorial trial prejudice because of an alleged Rosario violation (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64). Defendant complains of the prosecutor's omission to provide defense counsel with an audio tape related to the preparation of the medical examiner's autopsy report.
Supreme Court ruled that the audio tape was not Rosario material and denied defendant's postjudgment effort (159 Misc.2d 992, 607 N.Y.S.2d 557). The Appellate Division dismissed defendant's appeal on the ground that an appeal as of right did not lie (decision and order on motion, Apr. 18, 1994; CPL 450.10, 450.15, 440.10[1][f]. Defendant now appeals, by leave of a Judge of this Court, alleging that this limitation on a criminal defendant's automatic right to appeal a denial of a CPL 440.10(1)(f) motion (premised on prejudicial prosecutorial misconduct not appearing on the record) violates article VI, § 4(k) of the New York Constitution, as well as due process and equal protection guarantees.
Plaintiff Rivera was convicted of murder, second degree. The Appellate Division modified the judgment only by reducing the sentence and otherwise affirmed (133 A.D.2d 24, 518 N.Y.S.2d 619). This Court affirmed the Appellate Division's rejection of defendant's claim of ineffective assistance of counsel. In a Per Curiam opinion, we ruled that defendant had failed to meet his burden of demonstrating that counsel had acted less than adequately under the circumstances (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).
After this Court's decision on the direct appeal, plaintiff filed a motion in Supreme Court to vacate the judgment on the same ineffective assistance of counsel grounds (CPL 440.10[1][h]. The motion was denied, and plaintiff filed a notice of appeal. Also by motion, plaintiff sought leave to appeal the Supreme Court order (denying his motion to vacate judgment) to the Appellate Division and reserved his right to challenge the constitutionality of CPL 450.10 and 450.15. Plaintiff's motion was denied by a Justice of the Appellate Division.
Subsequent to that denial, plaintiff's counsel filed 10 copies of a brief in the Appellate Division for that Court's upcoming term. The Appellate Division returned all the copies to plaintiff's counsel with a card marked "rejected". Counsel was subsequently informed by the Appellate Division that the briefs were rejected for lack of a jurisdictional predicate, but no formal court adjudication in this respect or order was rendered.
Plaintiff next moved in this Court for an order (1) deeming the Appellate Division's "rejection" to be the equivalent of an order dismissing plaintiff's appeal; or (2) directing the Appellate Division to issue an order reflecting its determination of the case. Plaintiff also made application to appeal to this Court from the Appellate Division Justice's denial of leave to appeal to that Court. A Judge of this Court dismissed plaintiff's leave application (76 N.Y.2d 990, 563 N.Y.S.2d 779, 565 N.E.2d 528; CPL 460.20). We also dismissed plaintiff's motion to this Court (76 N.Y.2d 934, 563 N.Y.S.2d 59, 564 N.E.2d 669). None of those determinations are procedurally appropriate for us to review or are before us.
Plaintiff finally commenced the instant action seeking a judgment declaring CPL 450.10 and 450.15 unconstitutional to the extent that they preclude appeals as of right from denials of CPL 440.10(1)(h) motions, premised on claims of ineffective assistance of counsel. Supreme Court granted defendants Justices' motion to dismiss, finding no constitutional violation based on either article VI, § 4(k) grounds or other constitutional claims.
The Appellate Division affirmed (200 A.D.2d 519, 606 N.Y.S.2d 667), finding that: (1) the defendants Justices were not in an adversarial position with plaintiff and were, therefore, inappropriate parties against whom to seek declaratory relief; and (2) the order denying plaintiff's CPL 440.10 motion was intermediate, not final, and that, therefore, no constitutional infirmity based on article VI, § 4(k) existed. The Appellate Division granted leave to appeal to this Court, and we cocalendared this appeal with that in People v. Farrell, now decided together because of the common issue.
CPL 450.10 prescribes and retains appeals as of right to intermediate appellate courts in certain instances that are not relevant in these cases. Denials of motions to vacate judgments made pursuant to CPL 440.10 are excluded from the as-of-right protocol. CPL 440.10 authorizes a court, upon motion of the defendant, to vacate a judgment of conviction on the grounds, among others, of "[i]mproper and prejudicial conduct [during trial] not appearing in the record" (CPL 440.10[1][f] and "violation of a [defendant's constitutional] right" (CPL 440.10[1][h].
Appellants respectively claim, in their discrete procedural channels, that CPL 450.10 and 450.15 overstep the bounds of article VI, § 4(k) of the New York Constitution because these provisions deprive defendants of preserved appeals as of right from a denial of a postjudgment conviction motion pursuant to CPL 440.10(1)(f) or CPL 440.10(1)(h).
Article VI, § 4(k) of the New York Constitution fixed the floor of the jurisdiction of the Appellate Division as it existed on September 1, 1962 (People v. Pollenz, 67 N.Y.2d 264, 268, 502 N.Y.S.2d 417, 493 N.E.2d 541). The Constitution declares:
"The appellate divisions of the supreme court shall have all the jurisdiction possessed by them on the effective date of this article [Sept. 1, 1962] and such additional jurisdiction as may be prescribed by law, provided, however, that the right to appeal to the appellate divisions from a judgment or order which does not finally determine an action or special proceeding may be limited or conditioned by law" (NY Const, art VI, § 4[k].
As of its effective date, the provision "permits the Legislature to expand the jurisdiction of the Appellate Division but not contract it, except with regard to appeals from nonfinal orders" (People v. Pollenz, supra, at 270, 502 N.Y.S.2d 417, 493 N.E.2d 541 [emphasis added]. Thus, New York Constitution, article VI, § 4(k) precludes the Legislature from limiting appeals from final orders where "as of right" appeals existed as of September 1, 1962 (see, e.g., People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541, supra).
Appellants Farrell and Rivera, respectively, build their argument on a first foundational leg that an appeal as of right existed in 1962 from the denial of the equivalent of a motion to vacate a judgment on the grounds of prejudicial prosecutorial misconduct and ineffective assistance of counsel. Appellants assert that, in 1962, a collateral attack on a judgment for these grounds could have been brought in the form of a common-law writ of error coram nobis, and that an appeal as of right existed from the denial of coram nobis relief (Code Crim Proc §§ 517-519; L 1947, ch 706; L 1953, ch 602; People v. Crimmins, 38 N.Y.2d 407, 414, 381 N.Y.S.2d 1, 343 N.E.2d 719).
A second, equally necessary, foundational leg...
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