People v. Gonzalez
| Court | New York Court of Appeals |
| Writing for the Court | MEYER; COOKE |
| Citation | 419 N.Y.S.2d 913,47 N.Y.2d 606,393 N.E.2d 987 |
| Decision Date | 10 July 1979 |
| Parties | , 393 N.E.2d 987 The PEOPLE of the State of New York, Respondent, v. Federico GONZALEZ, Appellant. |
Page 913
v.
Federico GONZALEZ, Appellant.
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Stanley Neustadter, New York City, for appellant.Eugene Gold, Dist. Atty. (Morris Harary, Brooklyn, of counsel), for respondent.
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
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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. 2On 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.
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...
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People v. Baldi
...in any meaningful sense of the words.' " (See, also, People v. Bell, 48 N.Y.2d 933, 425 N.Y.S.2d 57, 401 N.E.2d 180; People v. Gonzalez, 47 N.Y.2d 606, 419 N.Y.S.2d 913, 393 N.E.2d Aiken's significance transcends it dicta, however, since the court applied both standards before concluding th......
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In the Matter of Giovanni S. (anonymous).Admin. For Children's Serv.
...440; see generally People v. Stokes, 95 N.Y.2d at 635, 639, 722 N.Y.S.2d 217, 744 N.E.2d 1153; [89 A.D.3d 256] People v. Gonzalez, 47 N.Y.2d 606, 610, 419 N.Y.S.2d 913, 393 N.E.2d 987). Significantly, “[a]lthough an indigent whose appeal is frivolous has no right to have an advocate make hi......
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People v. Alvarez, No. 13
...deficiencies—constituted ineffective assistance of appellate counsel due to counsel's complete failure to raise any argument at all ( 47 N.Y.2d 606, 611-612, 419 N.Y.S.2d 913, 393 N.E.2d 987 [1979] ). Likewise, in People v. Vasquez, we made clear that appellate counsel's submission of a bri......
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People v. Alvarez, No. 13
...deficiencies—constituted ineffective assistance of appellate counsel due to counsel's complete failure to raise any argument at all ( 47 N.Y.2d 606, 611-612, 419 N.Y.S.2d 913, 393 N.E.2d 987 [1979] ). Likewise, in People v. Vasquez, we made clear that appellate counsel's submission of a bri......
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Barnes v. Jones, No. 135
...the New York Appellate Division may be properly raised for the first time on direct appeal to the Court of Appeals. People v. Gonzalez, 47 N.Y.2d 606, 393 N.E.2d 987, 419 N.Y.S.2d 913 (1979) (remanding to the Appellate Division for de novo consideration of the appeal following High v. Rhay,......
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...in any meaningful sense of the words.' " (See, also, People v. Bell, 48 N.Y.2d 933, 425 N.Y.S.2d 57, 401 N.E.2d 180; People v. Gonzalez, 47 N.Y.2d 606, 419 N.Y.S.2d 913, 393 N.E.2d Aiken's significance transcends it dicta, however, since the court applied both standards before concluding th......
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In the Matter of Giovanni S. (anonymous).Admin. For Children's Serv.
...440; see generally People v. Stokes, 95 N.Y.2d at 635, 639, 722 N.Y.S.2d 217, 744 N.E.2d 1153; [89 A.D.3d 256] People v. Gonzalez, 47 N.Y.2d 606, 610, 419 N.Y.S.2d 913, 393 N.E.2d 987). Significantly, “[a]lthough an indigent whose appeal is frivolous has no right to have an advocate make hi......
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Evitts v. Lucey, No. 83-1378
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