Opinion
2008-292 W CR.
Decided October 23, 2009.
Consolidated appeals from (1) a judgment of the Justice Court of the Town of Cortlandt, Westchester County (Daniel A. McCarthy, J.), rendered July 7, 2006, and (2) an amended judgment of the same court (Daniel F. McCarthy, J.) rendered January 25, 2008. The judgment rendered July 7, 2006 convicted defendant, upon her plea of guilty, of resisting arrest, and imposed a sentence of probation. The amended judgment rendered January 25, 2008 revoked the sentence of probation, upon a finding, after a hearing, that defendant had violated conditions thereof, and resentenced her to a term of six months' imprisonment.
ORDERED that the appeal is held in abeyance, the application by Dennis M. Walsh, Esq., to be relieved as counsel is granted and new counsel is assigned to prosecute the appeal. Dennis M. Walsh, Esq., is directed to turn over all papers in his possession to new counsel assigned herein, new counsel shall serve and file a brief on behalf of defendant within 90 days after the date of this decision and order, and the People shall serve and file their brief within 21 days after service upon them of the appellant's brief.
PRESENT: NICOLAI, P.J., TANENBAUM and MOLIA, JJ.
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 this standard deprives a defendant of the right to the effective assistance of appellate counsel ( 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 Anders brief here fails to satisfy the standard. It does not discuss the facial sufficiency of the accusatory instruments. It does not mention that a court-ordered CPL article 730 psychiatric examination took place, and does not address the contents of defendant's motion to withdraw her guilty plea prior to sentence, or the merits of the Justice Court's summary denial of the motion. Finally, the brief does not adequately address the question whether the Justice Court's apparent rejection of the defenses proffered by defendant at the violation of probation hearing raises any non-frivolous issue on appeal.
Accordingly, the appeal is held in abeyance, appellate counsel's application to be relieved of his representation is granted and new counsel is assigned to prosecute the appeal ( see People v Sharpe , 16 Misc 3d 126[A], 2007 NY Slip Op 51216[U] [App Term, 9th 10th Jud Dists 2007]).
Nicolai, P.J., Tanenbaum and Molia, JJ., concur.