People v. Pollenz

• Citation: 67 N.Y.2d 264,502 N.Y.S.2d 417,493 N.E.2d 541
• Parties: , 493 N.E.2d 541 The PEOPLE of the State of New York, Respondent, v. Theodore POLLENZ, Appellant. The PEOPLE of the State of New York, Respondent, v. Edward W. MUGAVERO, Appellant.
• Decision Date: 06 May 1986
• Court: New York Court of Appeals

Page 417

502 N.Y.S.2d 417

67 N.Y.2d 264, 493 N.E.2d 541

The PEOPLE of the State of New York, Respondent, v. Theodore POLLENZ, Appellant.

The PEOPLE of the State of New York, Respondent, v. Edward W. MUGAVERO, Appellant.

Court of Appeals of New York.

May 6, 1986.

Paula Schwartz Frome and John Laurence Kase, Mineola, for appellant in the first above-entitled action.

Denis Dillon, Dist. Atty. (Denise Parillo and Anthony J. Girese, Mineola, of counsel), for respondent in the first above-entitled action.

Jonathan E. Gradess, Charles F. O'Brien, Martin I. Rosenbaum and Edward H. Wassermann, Albany, for New York State Defenders Association, amicus curiae in the first above-entitled action.

Mitchell Gittin, Brentwood, for appellant in the second above-entitled action.

Patrick Henry, Dist. Atty. (Patricia A. Murphy, Riverhead, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

PER CURIAM.

CPL 450.10, as amended by the Laws of 1984 (ch. 671), purports to disallow an appeal as of right to the Appellate Division where the sole issue raised is the excessiveness of a negotiated sentence imposed by a judgment rendered upon a guilty plea. ¹ We conclude that, in doing so, it imposes a limitation or condition on the jurisdiction of the Appellate Division of Supreme Court in contravention of N.Y. Constitution, article VI, § 4(k). ² In each of these two cases, therefore, the Appellate Division erred in relying upon the statute to dismiss the appeal taken as of right by the defendant. ³

Section 4(k) of article VI prohibits legislative curtailment of Appellate Division jurisdiction over appeals from final judgments. On its effective date, the Appellate Division was obliged to entertain all appeals from final judgments in criminal cases, including those rendered upon guilty pleas imposing negotiated sentences (see, e.g., People v. Thompson, 60 N.Y.2d 513, 520, 470 N.Y.S.2d 551, 458 N.E.2d 1228; People v. Zuckerman, 5 N.Y.2d 401, 185 N.Y.S.2d 8, 157 N.E.2d 862). That preexisting duty had been "constitutionalized" by the adoption of various provisions, beginning with article VI, § 2 (1894) which vested in the Appellate Divisions all the jurisdiction previously exercised by the General Term. The section was amended in 1925 by the addition of language vesting in the Appellate Division "such original or appellate jurisdiction as is now or may hereafter be prescribed by law", which change has been interpreted as "influenced by a desire to preserve the jurisdiction of the Appellate Divisions as broadly as it was then constituted" (9 New York Constitutional Convention of 1938, Problems Relating to Judicial Administration and Organization, at 97 [Poletti ed.] ). The 1925 Amendment was regarded as prohibiting the Legislature from reducing the jurisdiction of the Appellate Division in any way (1957 Report of Temporary Commn. on the Courts, 1957 McKinney's Session Laws of N.Y., at 1576). The Temporary Commission had also recommended the creation of an appellate tribunal apart from Supreme Court, with its jurisdiction expressly delineated by constitution provision. That recommendation was later withdrawn for fear that "the creation of a separate court with a new definition of appellate and original jurisdiction might unwittingly result in the loss of some jurisdiction" (Recommendations of Temporary Commn. on the Courts, 1958 McKinney's Session Laws of N.Y., at 1683). Finally, in 1958, the Judicial Conference recommended that the Appellate Divisions be continued as then constituted. As a result of the foregoing reports, at the 1959 legislative session several joint resolutions to amend article VI were proposed and debated. In adopting the joint resolution that was to become the present section 4(k), the Legislature rejected, among others, one that would have conferred upon the Appellate Division only such "appellate jurisdiction as provided by law." This history indicates that section 4(k) was intended to render inapplicable the general rule that the right to appellate review is purely statutory.

The People attempt to avoid the consequence of the constitutional command by ascribing to the term jurisdiction a narrow definition: that it relates only to the power of a court to decide a case properly before it, not to the duty of a court to hear a particular case. Our precedents are to the contrary, however, indicating that "[j]urisdiction is a word of elastic, diverse, and disparate meanings" (Lacks v. Lacks, 41 N.Y.2d 71, 74, 390 N.Y.S.2d 875, 359 N.E.2d 384, rearg. denied 41 N.Y.2d 862, 393 N.Y.S.2d 710, 362 N.E.2d 261; see, also, Nuernberger v. State of New York, 41 N.Y.2d 111, 115, 117, 390 N.Y.S.2d 412, 359 N.E.2d 412). Among those definitions is the duty of a court to consider an appeal brought before it as of right (see, e.g., People ex rel. Feeny v. Board of Canvassers, 156 N.Y. 36, 43, 50 N.E. 425 [Haight, J., concurring], rearg. denied 156 N.Y. 686, 50 N.E. 1120; see also, Governor's Memorandum of Approval, L.1985, ch. 300, in 1985 McKinney's Session Laws of N.Y., at 3292 [substitution of an appeal by permission for certain appeals formerly as of right to this court termed a "jurisdictional revision"] ).

In People v. Kevlon, 247 N.Y. 192, 159 N.E. 907, rearg. denied 247 N.Y. 584, 161 N.E. 191 the People appealed to our court from a judgment of the Appellate Division reversing the defendant's conviction. A recently enacted statute, Code of Criminal Procedure § 520, the constitutionality of which was not there being challenged, provided with respect to such appeals to our court that a certificate of a Justice of the Appellate Division or a Judge of our court was required, just as the statute here being...