| People v Thomas (Wayne) |
| 2009 NY Slip Op 50649(U) [23 Misc 3d 129(A)] |
| Decided on April 7, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 a judgment of the City Court of White Plains, Westchester County (Brian
Hansbury, J.), rendered July 24, 2007. The judgment convicted defendant, upon his plea of
guilty, of assault in the third degree.
Appeal held in abeyance, application by assigned counsel to be relieved as counsel granted, and new counsel assigned pursuant to article 18-b of the County Law to prosecute the appeal. New counsel is directed to file a brief within 90 days after the date of the order entered hereon and the People shall serve and file their brief within two weeks thereafter. Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel.
At minimum, an Anders brief must "refer[ ] to anything in the record that might arguably support the appeal" (Anders v California, 386 US 738, 744 [1967]) via " a statement of the factual and legal issues relevant to the conviction and sentence sufficient to enable the court to evaluate and correctly decide the appeal'" (People v Bing, 144 AD2d 249, 249 [1988], quoting People v Miller, 99 AD2d 1021, 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 this standard deprives a defendant of the right to the effective assistance of appellate counsel (People v Stokes, 95 NY2d 633 [2001]; People v Johnson, 11 Misc 3d 136[A], 2006 NY Slip Op 50494[U] [App Term, 9th & 10th Jud Dists 2006]). The brief here fails to satisfy the standard, as it does not address defendant's pro se motion to withdraw his waiver of a jury trial, and also does not address the absence from the record of a copy of the misdemeanor conviction waiver of rights form.
Accordingly, appellate counsel's application to be relieved of his representation must be granted and new counsel assigned to prosecute the appeal (see People v Sharpe, 16 Misc 3d 126[A], 2007 NY Slip Op 51216[U] [App Term, 9th & 10th Jud Dists 2007]). [*2]
Rudolph, P.J., Scheinkman and LaCava, JJ., concur.
Decision Date: April 07, 2009