People v. Murray, 2017–08647

CourtNew York Supreme Court Appellate Division
Writing for the CourtDILLON, J.P.
Citation169 A.D.3d 227,93 N.Y.S.3d 694
Parties The PEOPLE, etc., Respondent, v. Raymond MURRAY, Appellant.
Decision Date13 February 2019
Docket NumberS.C.I. No. 1058/17,2017–08647

169 A.D.3d 227
93 N.Y.S.3d 694

The PEOPLE, etc., Respondent,
v.
Raymond MURRAY, Appellant.

2017–08647
S.C.I. No. 1058/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted - October 31, 2018
February 13, 2019


Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Kathleen Halliday on the brief), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.

OPINION & ORDER

DILLON, J.P.

169 A.D.3d 228

In this matter, we address a circumstance where assigned counsel's failure, in a brief submitted in accordance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, to identify and analyze the defendant's waiver of the right to appeal during the plea proceeding may nevertheless be excused and the Anders relief granted.

I. FACTS

On September 20, 2016, two police officers observed the defendant jumping a turnstile at a subway station in Queens. Upon being approached by the officers, the defendant pushed one of the officers down a flight of stairs while attempting to avoid arrest. The defendant was apprehended, and charged in

169 A.D.3d 229

a Superior Court Information (hereinafter SCI) with attempted assault in the second degree ( Penal Law § 120.05[3] ).

On May 10, 2017, the defendant appeared with counsel before the Supreme Court, Queens County, and waived orally and in writing his right to be prosecuted by indictment. In lieu of an indictment, the defendant pleaded guilty to attempted assault in the second degree, a class E felony (see Penal Law §§ 110.00, 120.05[3] ), in full satisfaction of the SCI. The court (Althea Drysdale, J.) promised the defendant that the sentence to be imposed would be a term of imprisonment of 1½ to 3 years.

The Supreme Court placed the defendant under oath and conducted a careful voir dire. The voir dire included, but was not limited to, the defendant's understanding of his SCI waiver; his consultation and satisfaction with counsel; his surrender of constitutional rights such as a trial by jury, the confrontation of witnesses, remaining silent, the presumption of innocence, and the presentation of evidence to a grand jury; the absence of any threats or promises to induce the plea other than the sentence promise of the court; the People's burden to prove guilt beyond a reasonable doubt; and that his decision to plead guilty was being freely and voluntarily

93 N.Y.S.3d 697

entered. The defendant admitted to facts that tracked the elements of the crime to which he was pleading guilty, and he specifically informed the court that he was pleading guilty because he was, in fact, guilty. The defendant also acknowledged that, if he was not a citizen of the United States, his plea could have adverse immigration consequences. In any event, it was noted in a subsequently-prepared presentence report that the defendant is a citizen of the United States.

During the same plea proceeding, the Supreme Court separately asked the defendant whether he had executed a waiver of the right to appeal and had discussed the waiver with his counsel. The defendant answered that he had. The court then explained that, by waiving the right to appeal, the defendant was giving up his right to appeal as a poor person and to have an attorney assigned to represent him to argue on appeal any error in the plea or sentencing. The defendant stated that he understood the appellate waiver.

Further, during the plea proceeding, the defendant admitted to having been convicted in 2015 of attempted burglary in the third degree, and declined to challenge the constitutionality of that conviction. Accordingly, the defendant was adjudicated a second felony offender.

169 A.D.3d 230

The Supreme Court accepted the defendant's plea of guilty and reminded him that to receive the promised sentence, he needed to (1) cooperate with the Department of Probation, (2) not be arrested for any new offense between the date of the plea and the date of the sentence, and (3) appear in court for his sentence.

A presentence report was prepared, and on June 29, 2017, the Supreme Court (Gia Lynn Morris, J.) imposed the bargained-for sentence. The indeterminate term of imprisonment of 1½ to 3 years was the minimum term permissible for the offense to which the defendant pleaded guilty (see Penal Law § 70.06[3][e] ; [4][b] ). The defendant appealed from the judgment and was assigned counsel on the appeal.

Thereafter, the defendant's assigned counsel filed an Anders brief with this Court, seeking to be relieved as counsel on the ground that there were no nonfrivolous issues to be raised on appeal. In their respondent's brief, the People agreed that there were no nonfrivolous issues that could be raised. Assigned counsel's brief specifically discussed and analyzed the defendant's plea allocution, and concluded that the plea was entered knowingly, intelligently, and voluntarily. Assigned counsel also analyzed the facts and law governing the sentence, and acknowledged that since the defendant received the minimum permissible sentence, no nonfrivolous argument could be made that the sentence was excessive.

Noticeably absent from assigned counsel's Anders brief is any acknowledgment, discussion, or analysis of the defendant's waiver of the right to appeal or the enforceability of the waiver. In 2011, this Court rendered a significant and analytical opinion in Matter of Giovanni S. (Jasmin A.) , 89 A.D.3d 252, 931 N.Y.S.2d 676 (Skelos, J.), that clarified the law, expectations, requirements, and procedures for Anders relief. Here, seven years after Matter of Giovanni S. was decided, the absence of any identification or discussion by assigned counsel of the enforceability of the appellate waiver in this case, and the effect of such absence on counsel's obligation to analyze any possible issue that might arguably support an appeal, provides us with an opportunity to address when and whether certain shortcomings in Anders briefs do not warrant the assignment of new counsel.

II. LEGAL ANALYSIS

In 1967, the United States Supreme Court determined that assigned

93 N.Y.S.3d 698

appellate counsel may withdraw from representation

169 A.D.3d 231

if, after a conscientious examination of the record, an appeal would be wholly frivolous (see Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396). Assigned counsel's brief is not determinative, as the reviewing court must also conduct its own full examination of the proceedings to independently determine whether an appeal would be wholly frivolous (see id. ). Defendants are entitled to assigned counsel if they are unable to afford an advocate to perform an examination of the record in a conscientious effort to identify meritorious issues for appeal (see id. ; People v. Stokes, 95 N.Y.2d 633, 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153 ; People v. Brown, 140 A.D.2d 363, 527 N.Y.S.2d 850 ). A court may grant an assigned attorney's application to withdraw as counsel and affirm the judgment when it finds an appeal of the matter would be wholly frivolous (see Anders v. California, 386 U.S. at 741–742, 87 S.Ct. 1396 ; People v. Stokes, 95 N.Y.2d at 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153 ; People v. Powell, 85 A.D.3d 1061, 925 N.Y.S.2d 875 ). If, however, the court finds any legal points to be arguable on their merits, it must afford the indigent defendant the assistance of new counsel to argue the appeal.

The principles set forth in Anders have been embraced in New York (see People v. Stokes, 95 N.Y.2d at 636–637, 722 N.Y.S.2d 217, 744 N.E.2d 1153 ; People v. Gonzalez, 47 N.Y.2d 606, 610–611, 419 N.Y.S.2d 913, 393 N.E.2d 987 ; People v. Emmett, 25 N.Y.2d 354, 356–357, 306 N.Y.S.2d 433, 254 N.E.2d 744 ; People v. Saunders, 52 A.D.2d 833, 833–834, 384 N.Y.S.2d 161 ).

When evaluating a record of criminal proceedings, assigned counsel is tasked with the responsibility of identifying and distinguishing between issues that are frivolous and issues that are arguable on the merits. Frivolous issues, once identified, should not be pursued on appeal. Appeals that present issues that may be arguable on their merits—even if weakly or marginally so—must be perfected to fulfill the defendant's right to receive, and the attorney's obligation to provide, zealous representation (see Penson v. Ohio, 488 U.S. 75, 81 n 4, 109 S.Ct. 346, 102 L.Ed.2d 300 ; Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396 ; People v. Stokes, 95 N.Y.2d at 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153 ; People v. Gonzalez, 47 N.Y.2d at 610, 419...

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130 practice notes
  • People v. Smith, 2019–13193
    • United States
    • New York Supreme Court Appellate Division
    • April 13, 2022
    ...pursuant to ( Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 ) consists of two separate and distinct steps (see People v. Murray, 169 A.D.3d 227, 231–232, 93 N.Y.S.3d 694 ). "Step one is the court's evaluation of assigned counsel's brief, which must, to be adequate, discuss ‘relevant evi......
  • People v. Bowen, 2019–02732
    • United States
    • New York Supreme Court Appellate Division
    • March 17, 2021
    ...of the case and relevant legal authority" ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ; see People v. Murray, 169 A.D.3d 227, 232, 93 N.Y.S.3d 694 ). "[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new ......
  • People v. Robinson, 2017–12187
    • United States
    • New York Supreme Court Appellate Division
    • August 28, 2019
    ...and distinguishing between issues that are frivolous and issues that are arguable on the merits" ( 108 N.Y.S.3d 22 People v. Murray, 169 A.D.3d 227, 231, 93 N.Y.S.3d 694 ). "Frivolous issues, once identified, should not be pursued on appeal" ( id. at 231, 93 N.Y.S.3d 694 ). "Appeals that pr......
  • People v. Gordon, 2019–08357, 2020–07201, (Ind. No. 18-00167, S.C.I. No. 19-00301)
    • United States
    • New York Supreme Court Appellate Division
    • January 19, 2022
    ...255, 931 N.Y.S.2d 676 [emphasis omitted], quoting Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 ; see People v. Murray, 169 A.D.3d 227, 93 N.Y.S.3d 694 ). "[C]ounsel must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the re......
  • Request a trial to view additional results
130 cases
  • People v. Smith, 2019–13193
    • United States
    • New York Supreme Court Appellate Division
    • April 13, 2022
    ...pursuant to ( Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 ) consists of two separate and distinct steps (see People v. Murray, 169 A.D.3d 227, 231–232, 93 N.Y.S.3d 694 ). "Step one is the court's evaluation of assigned counsel's brief, which must, to be adequate, discuss ‘relevant evi......
  • People v. Bowen, 2019–02732
    • United States
    • New York Supreme Court Appellate Division
    • March 17, 2021
    ...of the case and relevant legal authority" ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ; see People v. Murray, 169 A.D.3d 227, 232, 93 N.Y.S.3d 694 ). "[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new ......
  • People v. Robinson, 2017–12187
    • United States
    • New York Supreme Court Appellate Division
    • August 28, 2019
    ...and distinguishing between issues that are frivolous and issues that are arguable on the merits" ( 108 N.Y.S.3d 22 People v. Murray, 169 A.D.3d 227, 231, 93 N.Y.S.3d 694 ). "Frivolous issues, once identified, should not be pursued on appeal" ( id. at 231, 93 N.Y.S.3d 694 ). "Appeals that pr......
  • People v. Gordon, 2019–08357, 2020–07201, (Ind. No. 18-00167, S.C.I. No. 19-00301)
    • United States
    • New York Supreme Court Appellate Division
    • January 19, 2022
    ...255, 931 N.Y.S.2d 676 [emphasis omitted], quoting Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 ; see People v. Murray, 169 A.D.3d 227, 93 N.Y.S.3d 694 ). "[C]ounsel must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the re......
  • Request a trial to view additional results

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