SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
April 1, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael Gerstein, J.), rendered June 25, 2007.
People v Strongreen (Kenneth)
Decided on April 1, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT:PESCE, P.J., WESTON and STEINHARDT, JJ
The judgment convicted defendant, upon his plea of guilty, of driving while ability impaired by drugs.
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 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 her possession to the newly assigned counsel.
An Anders brief should reflect that appellate counsel has determined the appeal to be frivolous after "a conscientious review of the record" (People v Stokes, 95 NY2d 633, 636 ). 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 ) 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 , quoting People v Miller, 99 AD2d 1021 ). 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 ), 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 633; People v Johnson, 11 Misc 3d 136[A], 2006 NY Slip Op 50494[U] [App Term, 9th & 10th Jud Dists 2006]).
The brief here does not meet the standard. We note, in particular, that it inaccurately asserts that defendant stated at the plea proceeding "that no promise or threat was made to him other than the promise of one year incarceration." In fact, defendant said at the plea proceeding that he had been promised that he would "be able to go home" that day. In addition, the sentence included one year of probation, not one year of incarceration; defendant was not advised at the plea proceeding that the period of probation would be one year; and defendant never acknowledged a promise of one year of probation. The errors are significant because the Anders brief fails to address defendant's claim, raised in a timely plea-withdrawal motion, that he had pleaded guilty "solely to get out of jail," and his additional claim, made at sentencing, that he would not have pleaded guilty had he known that the term of probation was to be one year.
Accordingly, appellate counsel's application to be relieved of her representation is granted and new counsel assigned to prosecute the appeal.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: April 01, 2011
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