People v. Gonzalez

• Decision Date: 10 July 1979
• Citation: 419 N.Y.S.2d 913,47 N.Y.2d 606,393 N.E.2d 987
• Parties: , 393 N.E.2d 987 The PEOPLE of the State of New York, Respondent, v. Federico GONZALEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 913

419 N.Y.S.2d 913

47 N.Y.2d 606, 393 N.E.2d 987

The PEOPLE of the State of New York, Respondent, v. Federico GONZALEZ, Appellant.

Court of Appeals of New York.

July 10, 1979.

Stanley Neustadter, New York City, for appellant

Eugene Gold, Dist. Atty. (Morris Harary, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

Has an indigent criminal defendant been deprived of his constitutional right to effective assistance of counsel where the attorney appointed to handle his appeal files a "brief" that summarizes the evidence, states "that in the opinion of the writer there were no points to be raised" on appeal, and then sets forth four point headings stating the points defendant desired to have presented, but advances no argument in support of any of the points? We hold that he has been and therefore reverse and remit for a De novo appeal.

On March 15, 1976, defendant, Federico Gonzalez, was convicted by a jury of two counts of criminal sale of a controlled substance in the first degree. He was sentenced on each count to the maximum term possible, 25 years to life, to run concurrently. His request for assignment of counsel to handle his appeal was honored by the Appellate Division by the appointment on September 28, 1976 of an attorney (other than the attorney handling the present appeal to our court). Though the appointed attorney received the trial transcript on March 23, 1977, he filed no brief until October 27, 1977 after the clerk of the Appellate Division had contacted him, after he had responded that he felt that "there were no substantial errors to be raised on the appeal", and after the clerk had then directed him to file a brief setting forth whatever points defendant had suggested.

The brief set forth a 28-page summary of the trial testimony of each witness on direct and cross-examination and noted some, but not all, of the objections made by the defense. The statement of facts concluded with the following paragraph: "As a result of communicating with the appellant, and advising him that in the opinion of the writer there were no points to be raised on his appeal. (Sic ) Appellant has requested the writer to submit the following points:" There followed four point headings, on separate pages, the text of which is set forth in the footnote below, ¹ but no discussion or argument of any sort under any point. The brief concluded that "For the foregoing reason (Sic ), it is respectfully submitted that the judgment of conviction should be reversed and the indictment dismissed."

By letter notarized November 2, 1977, recounting that defendant had never seen his On March 1, 1978, defendant applied Pro se for leave to appeal to our court on the ground that the brief filed with the Appellate Division so far failed to meet the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, that he had been denied effective assistance of counsel. At that juncture defendant's present counsel was obtained to represent him on a voluntary basis.

appointed attorney in person, had spoken to him only twice though defendant had called him in excess of 50 times during the 13 months since his conviction, had had to make a Pro se motion for the trial transcript because of counsel's failure to do so, and calling attention to the incomplete presentation of the brief and the absence of proper research, defendant requested that his appointed counsel be relieved, "competent counsel be appointed on my behalf to prosecute my appeal", and the time for filing a supplemental brief be enlarged so that the court could be provided "a complete statement of issues and law". The appointed attorney, responding to the application to relieve him, denied none of defendant's factual allegations, simply reiterating that "there were no substantial errors upon which any sort of argument could be made on behalf of appellant." Defendant's Pro se motion was denied on December 1, 1977 and on February 6, 1978, based on the submission of the appointed attorney and of the District Attorney, the judgment of conviction of defendant was unanimously affirmed. ²

Defendant's present counsel's brief essentially argues the ineffectiveness of representation by defendant's prior counsel, and in so doing identifies the following as some of the issues that were ascertainable from the record and should have been argued: (1) the failure, despite proper request, to instruct the jury, as required by CPL 300.10 (subd. 3), that the evidence with respect to each count be considered separately, (2) refusal to allow defense counsel to explore fully on cross-examination the inducements for the co-operation of the confidential informant, (3) the closing of the courtroom during the testimony of the informant, (4) the refusal of the Trial Judge to honor a subpoena issued before trial by a Judge of co-ordinate jurisdiction, (5) the failure to grant a mistrial after the admission of irrelevant and prejudicial evidence concerning the need for back-up teams for the protection of undercover police, and (6) the failure to grant a mistrial after admission of irrelevant and prejudicial testimony that defendant's interests were limited to guns and women.

The People not only oppose the main thrust of defendant's present appeal, but argue that the relief he requests is not warranted because this court can pass upon the issues listed above, none of which, argue the People, has substance. We decline to accept that invitation not only because the list set forth above is presented by defendant's counsel as but "some of" the available issues and not as an exhaustive list, but also because to do so would deprive defendant of the "interest of justice" discretion that resides in the Appellate Division but not in this court (see, e. g., People v. Gruttola, 43 N.Y.2d 116, 400 N.Y.S.2d 788, 371 N.E.2d 506).

Turning then to the main issue before us, we hold that defendant was denied his right to effective assistance of counsel by the disposition of the appeal based on the wholly deficient "brief" filed on his behalf.

The right of an indigent criminal defendant to the services of counsel on appeal is established by a long line of decisions of the Supreme Court and of this court. Those decisions make clear that the assistance given must be that of an advocate rather than as Amicus curiae (Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 It can hardly be gainsaid that paid appellate counsel intent upon protecting the rights of his incarcerated client will obtain and thoroughly study the trial transcript and consult with the defendant and with trial counsel (Matter of Nash, 61 Cal.2d 491, 39 Cal.Rptr. 205, 393 P.2d 405; People v. Hoffman, 382 Mich. 66, 168 N.W.2d 229 (Kavanaugh, J., dissenting)). The undisputed dilatoriness of appointed counsel in obtaining the record, his failure to consult with either trial counsel or defendant, and his failure...