Appeal from judgments of the City Court of Yonkers, Westchester County (Michael A. Martinelli, J.), rendered June 22, 2011. The judgments convicted defendant, upon his pleas of guilty, of criminal impersonation in the second degree, petit larceny, obstructing governmental administration in the second degree, criminal possession of a controlled substance in the seventh degree and driving while intoxicated. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which he seeks leave to withdraw as counsel.

ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted, and new counsel is assigned. New counsel is directed to file a brief within 90 days of the date of this decision and order 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.

Assigned counsel has submitted a brief pursuant to Anders v California (386 US 738 [*2][1967]) which does not reflect that his determination, that there are no nonfrivolous appealable issues, is based on "a conscientious review of the record" (People v Stokes, 95 NY2d 633, 636 [2001]). At a 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 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]; see People v Emmett, 25 NY2d 354, 356 [1969]), a brief that fails to satisfy that standard deprives a defendant of the right to the effective assistance of appellate counsel (see People v Stokes, 95 NY2d at 636; People v Kovalovsky, 23 Misc 3d 129[A], 2009 NY Slip Op 50648[U] [App Term, 9th & 10th Jud Dists 2009]).

Point 1 of the appellant's brief begins with the erroneous assertion that defendant had pleaded guilty to "manslaughter in the first degree" and continues with conclusory assertions of law regarding the validity of guilty pleas that could apply to any plea and without reference to the "factual and legal issues" particular to defendant's case. Upon our own independent review of the record, we find that potentially nonfrivolous issues exist "including, but not necessarily limited to, the validity of the appellant's waiver of his right to appeal" (People v Salgado, 103 AD3d 819 [2013]; see People v Bradshaw, 18 NY3d 257, 264 [2011]), and, if such waiver is found to be invalid, whether, under the particular circumstances presented, defendant should have been afforded the opportunity to withdraw his guilty pleas.

Nicolai, P.J., LaSalle and Tolbert, JJ., concur.
Decision Date: September 05, 2013