Opinion
2005-1707 D CR.
Decided on November 20, 2008.
Appeal from two judgments of the City Court of Poughkeepsie, Dutchess County (Ronald J. McGaw, J., at plea and sentence), rendered October 26, 2005. The judgments convicted defendant, respectively, upon his pleas of guilty, of petit larceny and criminal possession of stolen property in the fifth degree.
PRESENT: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
Appeal held in abeyance, application by Gary E. Eisenberg, Esq., to be relieved as counsel granted, and new counsel assigned to prosecute the appeal. Gary E. Eisenberg, 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 this decision and order, and the People shall serve and file their brief within two weeks after service upon them of the appellant's brief.
Assigned counsel submitted an Anders brief that 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). 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, 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 ( 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 2006]). Accordingly, appellate counsel's application to be relieved of his representation is granted and new counsel is assigned to prosecute the appeal.
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.