People v Johnson (Richard)

[*1] People v Johnson (Richard) 2006 NY Slip Op 50494(U) [11 Misc 3d 136(A)] Decided on March 27, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ
2005-203 W CR.

THE People of the State of New York, Respondent,

against

Richard Johnson, Appellant.

Appeal from amended judgments of the Justice Court of the Town of Mount Pleasant, Westchester County (Anthony J. Servino, J.), rendered January 27, 2005. The amended judgments convicted defendant, upon his pleas of guilty, of violation of probation, aggravated unlicensed operation of a motor vehicle in the second degree, and criminal possession of a controlled substance in the seventh degree.

Appeal held in abeyance, application by Gerald Zuckerman, Esq. to be relieved as counsel granted and new counsel assigned to prosecute the appeal. Gerald Zuckerman, Esq. is directed to turn over all papers in his possession to new counsel assigned herein.

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 [the] 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]). 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 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 [*2]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.
Decision Date: March 27, 2006