Opinion
December 6, 1979
Appeal from judgment, Supreme Court, New York County, rendered September 7, 1978, convicting defendant of attempted robbery in the second degree, and sentencing him to an indeterminate term of three and one-half to seven years, held in abeyance, counsel's motion to be relieved denied with leave to renew, and counsel directed to proceed as hereinafter indicated. Motion by defendant, pro se, to relieve counsel denied, as academic. After counsel ascertained that no nonfrivolous issues existed, he notified defendant that defendant could seek new counsel or submit a supplementary brief. Consequently, defendant moved to relieve counsel. In People v. Saunders ( 52 A.D.2d 833) this court established the procedure to be followed when an appeal is deemed wholly frivolous. The only option available to a defendant under Saunders is the opportunity to submit a supplementary brief. Thus, counsel's advice that new counsel could be sought was incorrect. We are aware that defendant himself informed counsel that he was unaware of the existence of any appealable issues. But since this communication was made before counsel prepared and filed his brief, a copy of which he transmitted to defendant, defendant has never been afforded the opportunity, pursuant to Saunders, to file a brief supplementary to counsel's. Counsel is directed to advise defendant that if he wishes to submit a supplementary brief, he must do so within 60 days after the entry of the order hereon.
Concur — Fein, J.P., Sandler, Sullivan, Bloom and Lupiano, JJ.