People v Randolph (Alex)

[*1] People v Randolph (Alex) 2006 NY Slip Op 51863(U) [13 Misc 3d 131(A)] Decided on September 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1636 W CR.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

Alex Owens Randolph, Appellant.

Appeal from a judgment of the City Court of New Rochelle, Westchester County (Gail B. Rice, J., at plea; Preston S. Scher, J., at sentence), rendered September 22, 2005. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree.

Appeal held in abeyance, application of 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, 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 30 days after service upon them of a copy of the appellant's brief.

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]). 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 [*2]AD2d 249, 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., Angiolillo and Lippman, JJ., concur.
Decision Date: September 25, 2006