Opinion
July 11, 1986
Appeal from the Monroe County Court, Celli, J.
Present — Dillon, P.J., Callahan, Denman, Balio and Lawton, JJ.
Case held, decision reserved, motion to relieve counsel's assignment granted, and new counsel to be assigned. Memorandum: Our review of the record reveals at least three nonfrivolous issues which arguably could support reversal or modification of the judgment convicting defendant of robbery in the third degree and grand larceny in the third degree: defense counsel purported to waive defendant's presence at the Wade/Huntley hearing (see, People v Anderson, 16 N.Y.2d 282, 286-288), absent any showing that defendant had been apprised by either the court or counsel of the nature of his right to be present and the consequences of his failure to appear (see, People v Parker, 57 N.Y.2d 136, 141); two separate showups were conducted in such fashion that either the two witnesses or the witnesses and the victim were asked simultaneously to view and identify the defendant (see, People v Adams, 53 N.Y.2d 241, 249); the court submitted two counts to the jury, one of which, grand larceny in the third degree (Penal Law § 155.30), may be a lesser inclusory count of the other, robbery in the third degree (Penal Law § 160.05; see, People v Acevedo, 40 N.Y.2d 701, 707).
It is a denial of a defendant's constitutional right to the effective assistance of appellate counsel for his lawyer to submit a brief requesting to be relieved of his assignment (see, People v Crawford, 71 A.D.2d 38) where there actually exist nonfrivolous arguments for reversal of defendant's conviction (see, People v Gonzalez, 47 N.Y.2d 606, 610). Since we find nonfrivolous issues, we will assign new counsel to submit full briefs before considering the appeal (see, People v Casiano, 67 N.Y.2d 906; People v Gonzalez, supra).