People v. Pollenz

CourtNew York Court of Appeals
Writing for the CourtPER CURIAM; WACHTLER; TITONE
Citation67 N.Y.2d 264,502 N.Y.S.2d 417,493 N.E.2d 541
Decision Date06 May 1986
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.

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

Page 418

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,...

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37 practice notes
  • People v. Brown,
    • United States
    • New York Supreme Court Appellate Division
    • September 10, 2014
    ...939, 652 N.E.2d 638 ; People v. Seaberg, 74 N.Y.2d 1, 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; see also CPL 450.10 ; People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541 ). Nevertheless, a defendant may waive the right to appeal as a condition of a guilty plea (see People v. Lop......
  • People v. Batista, 2014–11805
    • United States
    • New York Supreme Court Appellate Division
    • November 7, 2018
    ...796, 628 N.Y.S.2d 939, 652 N.E.2d 638 ; People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ; see also CPL 450.10 ; People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541 ). However, that "right to appeal may be waived as a condition of a sentence or plea bargain" ( People v.......
  • Soares v. State, 906409-18
    • United States
    • United States State Supreme Court (New York)
    • January 28, 2020
    ...by a desire to preserve the jurisdiction of the Appellate Divisions as broadly as it was then constituted’ " ( People v. Pollenz , 67 N.Y.2d 264, 268, 502 N.Y.S.2d 417, 493 N.E.2d 541 [1986], citing 9 New York Constitutional Convention of 1938, Problems Relating to Judicial Administration a......
  • People v. Stevens
    • United States
    • New York Court of Appeals
    • February 19, 1998
    ...a prescribed right of appeal thus becomes available to the Appellate Division through that characterization. Citing People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541, they add to their theory that the Legislature cannot curtail appellate jurisdiction as of right from final ......
  • Request a trial to view additional results
37 cases
  • People v. Brown,
    • United States
    • New York Supreme Court Appellate Division
    • September 10, 2014
    ...939, 652 N.E.2d 638 ; People v. Seaberg, 74 N.Y.2d 1, 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; see also CPL 450.10 ; People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541 ). Nevertheless, a defendant may waive the right to appeal as a condition of a guilty plea (see People v. Lop......
  • People v. Batista, 2014–11805
    • United States
    • New York Supreme Court Appellate Division
    • November 7, 2018
    ...796, 628 N.Y.S.2d 939, 652 N.E.2d 638 ; People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ; see also CPL 450.10 ; People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541 ). However, that "right to appeal may be waived as a condition of a sentence or plea bargain" ( People v.......
  • Soares v. State, 906409-18
    • United States
    • United States State Supreme Court (New York)
    • January 28, 2020
    ...by a desire to preserve the jurisdiction of the Appellate Divisions as broadly as it was then constituted’ " ( People v. Pollenz , 67 N.Y.2d 264, 268, 502 N.Y.S.2d 417, 493 N.E.2d 541 [1986], citing 9 New York Constitutional Convention of 1938, Problems Relating to Judicial Administration a......
  • People v. Stevens
    • United States
    • New York Court of Appeals
    • February 19, 1998
    ...a prescribed right of appeal thus becomes available to the Appellate Division through that characterization. Citing People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541, they add to their theory that the Legislature cannot curtail appellate jurisdiction as of right from final ......
  • Request a trial to view additional results

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