Opinion
July 14, 1992
Appeal from the Genesee County Court, Morton, J.
Present — Denman, P.J., Boomer, Pine, Lawton and Boehm, JJ.
Case held, decision reserved, motion to relieve counsel of assignment granted and new counsel to be assigned. Memorandum: Appellate counsel's brief in support of his motion to withdraw as counsel is grossly inadequate (see, People v. Crawford, 71 A.D.2d 38). Before pleading guilty to criminal possession of a controlled substance in the fourth degree, defendant moved to suppress certain evidence obtained through the execution of an eavesdropping warrant.
In a brief in support of a Crawford motion, counsel must state "all points which may arguably provide a basis for appeal, with references to the record and citation of applicable legal authorities" (People v. Crawford, supra, at 39).
An application in support of an eavesdropping warrant must contain facts showing both probable cause and that other means of investigation are too dangerous to employ or would be ineffective. In his brief, appellate counsel fails to make reference to any facts in the record bearing upon either requirement.
Lacking a statement of the relevant facts, a Crawford brief provides the court with no assistance in making the ultimate determination of whether the appeal is frivolous, and it fails to demonstrate that counsel has made a "conscientious review of the record" (People v. Crawford, supra, at 39).
Counsel is relieved of his assignment and new counsel is appointed to prepare an adequate brief raising any nonfrivolous issues he may find. If, "after making a conscientious review of the record, counsel determines that the appeal is frivolous," counsel may file a brief in compliance with the requirements of People v. Crawford (supra, at 39), stating "all points which may arguably provide a basis for appeal, with references to the record and citation of applicable legal authorities" (People v Crawford, supra, at 39).