People v Sharpe (Joseph)

[*1] People v Sharpe (Joseph) 2007 NY Slip Op 51216(U) [16 Misc 3d 126(A)] Decided on June 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 11, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LaCAVA and EMERSON, JJ
2006-1284 W CR.

The People of the State of New York, Respondent,

against

Joseph Sharpe, Appellant.

Appeal from judgments of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J., at plea; Arthur J. Doran, III, J., at sentence), rendered July 6, 2006. The judgments convicted defendant, upon his pleas of guilty, of two charges of criminal possession of a controlled substance in the seventh degree.

Appeal held in abeyance, application by Steven C. Davidson, Esq., to be relieved as counsel granted and new counsel assigned to prosecute the appeal. Steven C. Davidson, 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 "appellant was legally sentenced and [there are] no non-frivolous or meritorious issues remaining" (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 [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; People v Johnson, 11 Misc 3d 136[A], 2006 NY Slip Op 50494[U] [App Term, 9th & 10th Jud Dists]). 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., LaCava and Emerson, JJ., concur.
Decision Date: June 11, 2007