PEOPLE v. SMITH (2006)

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered May 24, 2004, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree.

Charged with robbery in the first degree, defendant pleaded guilty to attempted robbery in the first degree in exchange for a sentence in the range of 7 to 12 years.   He was sentenced as a second felony offender in accordance with the plea agreement to a prison term of 10 years, followed by five years of postrelease supervision.   On appeal, defense counsel seeks to be relieved of his assignment as counsel on the ground that there are no nonfrivolous issues that can be raised on appeal.   As at least one issue exists which could arguably provide a basis for appeal, counsel must be relieved and new counsel assigned to prosecute defendant's appeal (see People v. Cruwys, 113 A.D.2d 979, 980, 493 N.Y.S.2d 653 [1985], lv. denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986];  see generally People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] ).

 Submission of an Anders brief is generally inappropriate in an appeal such as this, where defendant entered a guilty plea and received a negotiated discretionary sentence within the range agreed upon but did not waive his right to appeal.   Pursuant to CPL 450.10, a defendant has an absolute right to take an appeal “as of right” to the Appellate Division from any judgment or sentence (other than one including a sentence of death) (CPL 450.10 [1], [2];  see People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228 [1983] ).   Legislative efforts to preclude an appeal as of right to the Appellate Division where the sole issue raised is the excessiveness of a negotiated sentence imposed upon a guilty plea have been ruled impermissible, as a curtailment of the constitutional duty of the Appellate Division to entertain all appeals from final judgments (see People v. Callahan, 80 N.Y.2d 273, 284, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];  People v. Pollenz, 67 N.Y.2d 264, 268-270, 502 N.Y.S.2d 417, 493 N.E.2d 541 [1986];  see e.g. People v. Alvarado, 122 A.D.2d 429, 429, 504 N.Y.S.2d 825 [1986], lv. denied 68 N.Y.2d 998, 510 N.Y.S.2d 1030, 503 N.E.2d 127 [1986];  see also N.Y. Const., art. VI, § 4[k] ).  Thus, absent an enforceable appeal waiver, defendants who plead guilty do not lose their right to invoke the Appellate Division's interest of justice jurisdiction to reduce their discretionary sentence ¹ (see People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Thompson, supra at 520, 470 N.Y.S.2d 551, 458 N.E.2d 1228;  People v. Coleman, 30 N.Y.2d 582, 583, 330 N.Y.S.2d 797, 281 N.E.2d 845 [1972];  see also CPL 450.10, 470.15[4] [c];  [6][b];  470.20[6] ).   While this may “frustrate[ ] the People's expectations in cases involving negotiated sentences” (People v. Thompson, supra at 520, 470 N.Y.S.2d 551, 458 N.E.2d 1228), it is the result of clear legislative mandates.²

 It is also firmly established that a defendant has the constitutional right to the effective assistance of counsel on appeal (see People v. Bachert, 69 N.Y.2d 593, 596, 516 N.Y.S.2d 623, 509 N.E.2d 318 [1987];  People v. Gonzalez, 47 N.Y.2d 606, 610, 419 N.Y.S.2d 913, 393 N.E.2d 987 [1979];  see also Evitts v. Lucey, 469 U.S. 387, 396-397, 105 S.Ct. 830, 83 L.Ed.2d 821 [1985] ) and that “the Fourteenth Amendment mandates that an indigent criminal defendant be afforded equal rights to appeal through the representation and advocacy of assigned counsel” (People v. Stokes, 95 N.Y.2d 633, 635-636, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] [emphasis added], citing Evitts v. Lucey, supra and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 [1963] ).   Thus, an indigent defendant has the constitutional right to receive substantially the same assistance as one who can afford retained counsel (see Anders v. California, 386 U.S. 738, 741-744, 87 S.Ct. 1396, 18 L.Ed.2d 493 [1967];  Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2 L.Ed.2d 1060 [1958];  People v. Stokes, supra at 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153;  People v. Bachert, supra;  People v. Gonzalez, supra at 610, 419 N.Y.S.2d 913, 393 N.E.2d 987;  People v. Emmett, 25 N.Y.2d 354, 356, 306 N.Y.S.2d 433, 254 N.E.2d 744 [1969] ).

 In our view, an appeal challenging County Court's imposition of a negotiated but discretionary sentence, as part of a plea, would rarely be “wholly frivolous” (People v. Stokes, supra ), given a defendant's appeal rights (see CPL 450.10[2] ) and the inherently arguable merits of discretionary sentences (see Anders v. California, supra at 744, 87 S.Ct. 1396;  People v. Stokes, supra at 639, 722 N.Y.S.2d 217, 744 N.E.2d 1153).   To be sure, appointed counsel is not constitutionally obligated to raise every colorable (nonfrivolous) claim on appeal even if requested by the defendant (see Jones v. Barnes, 463 U.S. 745, 751-754, 103 S.Ct. 3308, 77 L.Ed.2d 987 [1983] ).   However, a valid guilty plea forecloses appellate review of many issues and the appropriateness of the discretionary sentence will often be the “most promising” (id. at 752, 103 S.Ct. 3308) or even the sole arguable issue for appeal.   Counsel's decision not to invoke this Court's power will rarely be in the defendant's best interests (see People v. White, 73 N.Y.2d 468, 478, 541 N.Y.S.2d 749, 539 N.E.2d 577 [1989], cert. denied 493 U.S. 859, 110 S.Ct. 170, 107 L.Ed.2d 127 [1989];  see Jones v. Barnes, supra ).

 Indeed, submission of a no-merit brief-based upon counsel's subjective conclusion that the defendant is “unlikely to prevail” (Smith v. Robbins, 528 U.S. 259, 262, 279, 120 S.Ct. 746, 145 L.Ed.2d 756 [2000] ) in an appeal invoking the Appellate Division's interest of justice power to reduce a lawful, negotiated sentence-blurs the critical distinction between “wholly frivolous” issues (People v. Stokes, supra at 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153), appropriate in an Anders brief, and issues “arguable on their merits (and therefore not frivolous)” (Anders v. California, supra at 744, 87 S.Ct. 1396), for which a no-merit Anders brief is inappropriate (see Smith v. Robbins, supra at 280, 285, 120 S.Ct. 746).   Further, the United States Supreme Court has adhered to the principle that the decision to “take an appeal” is one of the fundamental decisions regarding a case which is retained by a defendant (Jones v. Barnes, supra at 751, 103 S.Ct. 3308).   Such a right, we believe, is diminished here by an Anders brief which declines to argue the merits of a discretionary sentence, apparently the sole ground for appeal.

 By distinction, had defendant validly and comprehensively waived his right to appeal, he would have forfeited the right to ask the Appellate Division to exercise its discretion to reduce a lawful sentence (see People v. Lopez, supra at 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  People v. Seaberg, 74 N.Y.2d 1, 7-10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989];  People v. Clow, 10 A.D.3d 803, 782 N.Y.S.2d 148 [2004];  cf. People v. Trotter, 28 A.D.3d 947, 948, 813 N.Y.S.2d 811 [2006] ).   Acceptance of an Anders brief is generally appropriate where the defendant validly waives all appeal rights (see e.g. People v. Cornell, 28 A.D.3d 871, 812 N.Y.S.2d 386 [2006];  People v. Hesch, 28 A.D.3d 798, 811 N.Y.S.2d 600 [2006];  People v. Paolucci, 307 A.D.2d 479, 761 N.Y.S.2d 877 [2003];  People v. Riddick, 298 A.D.2d 710, 748 N.Y.S.2d 534 [2002], lv. denied 99 N.Y.2d 619, 757 N.Y.S.2d 830, 787 N.E.2d 1176 [2003] ).   However, where a defendant received a discretionary sentence but did not waive the right to appeal (see People v. Lopez, supra at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145, revg. People v. Billingslea, 16 A.D.3d 516, 792 N.Y.S.2d 110 [2005] ) or there is an arguable issue as to the enforceability or scope of an appeal waiver (see People v. Lewis, 29 A.D.3d 1076, 813 N.Y.S.2d 686 [2006];  People v. Santalucia, 9 A.D.3d 740, 779 N.Y.S.2d 793 [2004] ), acceptance of an Anders brief would rarely be appropriate (see People v. Stokes, supra;  People v. Thompson, 60 N.Y.2d 513, 520, 470 N.Y.S.2d 551, 458 N.E.2d 1228 [1983],supra ).

ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.

FOOTNOTES

1.   If a defendant received the minimum sentence authorized by law, there is no “legally authorized lesser sentence” (CPL 470.20[6] ) and, thus, the Appellate Division has no available corrective action (see People v. Anderson, 268 A.D.2d 228, 229, 702 N.Y.S.2d 4 [2000], lv. denied 95 N.Y.2d 792, 711 N.Y.S.2d 160, 733 N.E.2d 232 [2000];  People v. Rodriguez, 260 A.D.2d 281, 688 N.Y.S.2d 556 [1999] ), unless the sentence is deemed unconstitutional (see CPL 470.15[2][c];  see also People v. Thompson, 83 N.Y.2d 477, 611 N.Y.S.2d 470, 633 N.E.2d 1074 [1994] ).

2.   Indeed, this Court routinely reviews the merits of appeals in which the sole issue is the severity of discretionary sentences which were negotiated as part of a plea agreement (see e.g. People v. Boyd, 26 A.D.3d 534, 809 N.Y.S.2d 266 [2006];  People v. Provost, 25 A.D.3d 1016, 1016-1017, 808 N.Y.S.2d 502 [2006], lv. denied 6 N.Y.3d 817, 812 N.Y.S.2d 456, 845 N.E.2d 1287 [2006];  People v. McCarthy, 23 A.D.3d 919, 804 N.Y.S.2d 151 [2005];  People v. Smith, 22 A.D.3d 964, 802 N.Y.S.2d 557 [2005] ).

SPAIN, J.

MERCURE, J.P., PETERS, LAHTINEN and KANE, JJ., concur.