PEOPLE v. JONES (2008)

Appeal from judgments of the City Court of New Rochelle, Westchester County (John P. Colangelo, J., at plea and sentence), rendered March 2, 2007.   The judgments convicted defendant, respectively, upon his pleas of guilty, of petit larceny and bail jumping in the third degree.

Appeal held in abeyance, application by Evelyn K. Isaac, Esq., to be relieved as counsel granted and new counsel assigned to prosecute the appeal.   Evelyn K. Isaac, Esq., is directed to turn over all papers in her possession to new counsel assigned herein, and new counsel shall serve and file a brief on behalf of defendant within 90 days of the date of this decision and order, and the People shall serve and file their brief within two weeks thereafter.

 The legal analysis presented in assigned counsel's Anders brief consists essentially of the following three sentences:

“I can find no issue of fact, law or matter of discretion for this Court to review.   Defendant took Pleas in this matter and in his Misdemeanor Conviction Waiver Forms waived his right to appeal his conviction.

“Moreover, the sentence appears to have been proper and does not appear to have been excessively harsh or unfair.”

 At minimum, an Anders brief must “refer[ ] to anything in the record that might arguably support the appeal” (Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 [1967] ) 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 A.D.2d 249, 249, 533 N.Y.S.2d 720 [1988], quoting People v. Miller, 99 A.D.2d 1021, 473 N.Y.S.2d 811 [1984] ).   As an appellate court's review of the record cannot “substitute for the single-minded advocacy of appellate counsel” (People v. Casiano, 67 N.Y.2d 906, 907, 501 N.Y.S.2d 808, 492 N.E.2d 1224 [1986] ), a brief that fails to satisfy this standard deprives a defendant of the right to the effective assistance of appellate counsel (People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001];  People v. Johnson, 11 Misc.3d 136(A), 2006 N.Y. Slip Op. 50494(U), 2006 WL 797574 [App. Term, 9th & 10th Jud. Dists. 2006] ).

Accordingly, appellate counsel's application to be relieved of her representation must be granted and new counsel assigned to prosecute the appeal (see People v. Sharpe, 16 Misc.3d 126(A), 2007 N.Y. Slip Op. 51216(U), 2007 WL 1732792 [App. Term, 9th & 10th Jud. Dists. 2007] ).