PEOPLE v. RHODES (1997)

Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered February 5, 1997, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

In December 1996, defendant was arraigned before County Court, represented by the Public Defender's office which continued representation through a waiver of indictment, entry of a plea and sentencing.   Upon the entry of the plea, County Court advised both the People and defendant that despite their agreed-upon sentence of incarceration of 2 to 4 years, it would not be bound by that agreement.

At sentencing, a complete presentence investigation report was not available to County Court due to defendant's lack of cooperation.   Defense counsel did not move to vacate the plea, provide any explanation concerning defendant's lack of cooperation with the Probation Department or request an adjournment of the sentencing.   The court imposed a sentence of 3 1/212 to 7 years.

Upon this appeal, defendant is again represented by the Public Defender's office which asserts that since there are no nonfrivolous issues to be raised, it should be relieved from representing defendant (see, People v. Cruwys, 113 A.D.2d 979, 493 N.Y.S.2d 653, lv. denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562).   Defendant has not submitted a pro se brief.

 Where nonfrivolous arguments for reversal or modification of a defendant's conviction exist and appellate counsel submits a brief requesting to be relieved of his or her assignment, a denial of the defendant's constitutional right to effective assistance of appellate counsel is manifest (People v. Moore, 239 A.D.2d 708, 657 N.Y.S.2d 826, 827;  People v. Spinks, 234 A.D.2d 985, 651 N.Y.S.2d 823).   Without determining whether the filing of an Anders brief (see, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493) by the Public Defender's office at the appellate level, after having represented a defendant at the trial level, is an inherent conflict of interest, we reiterate the caution propounded by Chief Judge Fuld in People v. Emmett, 25 N.Y.2d 354, 306 N.Y.S.2d 433, 254 N.E.2d 744, that “[t]here is no substitute for the single-minded advocacy of appellate counsel.   Experience has demonstrated that they not infrequently advance contentions which might otherwise escape the attention of judges of busy appellate courts, no matter how conscientiously and carefully those judges read the records before them” (id., at 356, 306 N.Y.S.2d 433, 254 N.E.2d 744).

 Concluding that it is necessary that independent counsel take a fresh look at this proceeding so as to assess whether any nonfrivolous issues, including a claim of ineffective assistance in connection with the representation of defendant before the sentencing court, should be raised, we hereby relieve defense counsel of this assignment (see, People v. Casiano, 67 N.Y.2d 906, 501 N.Y.S.2d 808, 492 N.E.2d 1224).

ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.

PETERS, Justice.

MIKOLL, J.P., and MERCURE, CREW and YESAWICH, JJ., concur.