People v. Stokes

• Decision Date: 08 February 2001
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROGER STOKES, Appellant.
• Court: New York Court of Appeals Court of Appeals

95 N.Y.2d 633

744 N.E.2d 1153

722 N.Y.S.2d 217

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROGER STOKES, Appellant.

Court of Appeals of the State of New York.

Argued January 3, 2001.

Decided February 8, 2001.

New York State Defenders Association, Albany (Alfred O'Connor of counsel), for appellant.

John R. Trice, District Attorney of Chemung County, Elmira (Charles Metcalf and Adam M. Gee of counsel), for respondent.

Chief Judge KAYE and Judges SMITH, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

LEVINE, J.

While an inmate at the Southport Correctional Facility, defendant was accused and convicted after trial of aggravated harassment of an employee by an inmate in violation of Penal Law § 240.32, a class E felony, for allegedly spraying a mixture of excrement and urine on a correction counselor. The court sentenced defendant to 15 years to life as a persistent felony offender pursuant to Penal Law § 70.10.

Defendant thereafter filed a notice of appeal and, as an indigent, requested assignment of appellate counsel. The attorney assigned by the Appellate Division filed a six-page, double spaced no-merit brief, requesting that she be relieved of the assignment because, in her estimation, there were no non-frivolous issues upon which to base defendant's appeal. Upon receiving a copy of that brief, defendant submitted two handwritten pro se supplemental briefs in which he argued, among other things, that he should not have been shackled during the course of the trial and that his sentence of 15 years to life for this class E felony was unduly harsh and excessive. In addition, defendant highlighted numerous defects and factual errors within the brief submitted by his assigned appellate counsel. Based upon counsel's representation that there were no non-frivolous issues, the People opted not to submit a responding brief.

The Appellate Division, concluding that there were no non-frivolous issues to be addressed on appeal, granted appellate counsel's request to be relieved of the assignment and unanimously affirmed the judgment of conviction (267 AD2d 718). A Judge of this Court granted leave to appeal. Because the papers submitted by assigned counsel on appeal to the Appellate Division did not adequately safeguard defendant's right to appellate counsel, we now reverse and remit to the Appellate Division for a de novo appeal with new assigned counsel.

Where a State creates an appellate procedure in criminal matters, the Fourteenth Amendment mandates that an indigent criminal defendant be afforded equal rights to appeal through the representation and advocacy of assigned counsel (see, Evitts v Lucey, 469 US 387

; Douglas v California, 372 US 353; People v Hughes, 15 NY2d 172). The one limitation on this constitutional right is that it "does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal" (Smith v Robbins, 528 US 259, 278; see, Anders v California, 386 US 738, 741-742). In the event that assigned counsel determines, after a conscientious review of the record and the applicable law, that an appeal is wholly frivolous, counsel may request permission to be relieved of the assignment (see, Anders, supra, at 741-742, citing Ellis v United States, 356 US 674, 675).

In Anders, the Supreme Court described a procedure by which courts could ensure protection of indigent defendants' constitutional rights in the context of purportedly frivolous appeals (see, Anders v California, supra, at 744

; Smith v Robbins, supra, 528 US, at 278 [explaining that the "goal of Anders was to prevent this limitation on the right to appellate counsel from swallowing the right itself"]). The Anders Court noted that assigned appellate counsel was constitutionally required to act as an "active advocate" on behalf of his or her client, not merely an adviser to the court on the merits of the appeal (id., at 744). Recognizing the propriety of requesting permission to withdraw from representation in the event that counsel considered an appeal to be wholly frivolous, the Court stated:

"[t]hat request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal * * * [o]n the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal" (id.).

This Court has consistently recognized and enforced the right of indigent defendants to effective assistance of counsel on appeal and the need to ensure that the Anders exception is carefully scrutinized and applied (see, People v Gonzalez, 47 NY2d 606, 610 ["assistance given must be that of an advocate rather than amicus curiae"]; People v Emmett, 25 NY2d 354, 356 ["There is no substitute for the single-minded advocacy of appellate counsel"]). In Gonzalez, we invited the various Departments of the Appellate Division to develop rules and procedures to address the issue of purportedly frivolous appeals (People v Gonzalez, supra, 47 NY2d, at 612, n 3). Following the lead of the First Department in People v Saunders (52 AD2d 833 [holding that a request to withdraw as counsel, after a "conscientious examination of the record(,) * * * should be accompanied by a brief reciting the underlying facts and highlighting anything in the record that might arguably support the appeal"]), and in response to this Court's invitation in Gonzalez, the Departments of the Appellate Division have formulated such procedures to be utilized by courts of this State in assessing frivolous appeals (see, People v Cruwys, 113 AD2d 979, 980

[3d Dept] ["counsel should promptly take steps to obtain the * * * transcripts and to consult with his (or her) client and with trial counsel. If counsel determines, after making a diligent and conscientious examination of the record, that the appeal is frivolous" he or she may apply for relief from the assignment and "(s)uch application must be accompanied by a brief reciting the underlying facts and raising all points which may arguably provide a basis for appeal, with references to the record and citation of applicable legal authorities"]; People v Crawford, 71 AD2d 38, 39 [4th Dept] [appellate counsel "is not appointed amicus curiae to advise the court whether or not defendant's appeal has merit" but must "assist the court * * * by advancing defendant's contentions to the fullest extent that the record permits"]; see also, People v Brown, 140 AD2d 363 [2d Dept] [following First Department in People v Saunders]). Notably, the procedures adopted by New York courts closely parallel and are clearly modeled upon the procedure set forth by the Supreme Court in Anders.

The Supreme Court of the United States recently clarified, in Smith v Robbins (supra), that the procedure described in Anders is but one example of an adequate method by which States can safeguard indigent defendants' constitutional rights. Because New York has repeatedly adhered to the protocol outlined in Anders, however, we see no compelling reason at this time to revisit, alter or...