| People v Hayden (Lisa) |
| 2007 NY Slip Op 50728(U) [15 Misc 3d 134(A)] |
| Decided on April 6, 2007 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from judgments of the City Court of Mount Vernon, Westchester County (Adam Seiden, J., at plea; William J. Edwards, J., at sentence), rendered September 9, 2005. The judgments convicted defendant, upon her pleas of guilty, of criminal possession of a controlled substance in the seventh degree and bail jumping in the third degree.
Appeal held in abeyance, application by Douglas J. Martino, Esq. to be relieved as counsel granted and new counsel assigned to prosecute the appeal. Douglas J. Martino, Esq. is directed to turn over all papers in his possession to new counsel
assigned herein, and new counsel shall serve and file a brief on behalf of defendant within 90 days of the decision and order entered hereon, and the People shall serve and file their brief within 120 days of the order entered hereon.
Assigned counsel submitted an Anders brief setting forth little more than his statement that he is "unaware" of the existence of "meritorious issues . . . that would require the reversal of this conviction" (cf. Anders v California, 386 US 738 [1967]). Such a brief does not reflect that counsel determined the appeal to be frivolous after "a conscientious review of the record" (People v Stokes, 95 NY2d 633, 636 [2001]; People v Truss, 287 AD2d 750 [2001]). At minimum, an Anders brief must "refer[] to anything in the record that might arguably support the appeal" (Anders v California, 386 US at 744) via "a statement of the factual and legal issues relevant to the conviction and sentence sufficient to enable the court to evaluate and correctly [*2]decide the appeal" (People v Bing, 144 AD2d 249 [1988], quoting People v Miller, 99 AD2d 1021 [1984]). As an appellate court's review of the record cannot "substitute for the single-minded advocacy of appellate counsel" (People v Casiano, 67 NY2d 906, 907 [1986]), a brief that fails to satisfy that standard deprives a defendant of the right to the effective assistance of appellate counsel (People v Stokes, 95 NY2d 633, supra). Accordingly,
appellate counsel's application to be relieved of his representation must be granted and new counsel assigned to prosecute the appeal.
Rudolph, P.J., Lippman and Molia, JJ., concur.
Decision Date: April 6, 2007