Opinion
March 9, 1989
Appeal from the Supreme Court, New York County, Luis Neco, J., Frederic S. Berman, J.
Assigned counsel who file an Anders-Saunders brief (Anders v California, 386 U.S. 738; People v. Saunders, 52 A.D.2d 833), seeking to withdraw, have an obligation not only to investigate the possible merit of any issue, but also to indicate the reasons which lead them to the conclusion that they lack merit (People v Lowery, 86 A.D.2d 537). All matters in the record which might arguably support the appeal should be referred to and discussed (see, People v. Gonzalez, 47 N.Y.2d 606, 611).
Assigned counsel has filed a 16-page brief which reviews the Huntley hearing and the June 22, 1987 renegotiated plea and sentencing proceeding, and concludes that these proceedings present no nonfrivolous issues. However, as noted by the People, the court which accepted defendant's plea on June 22, 1987 did not conduct a full plea allocution, apparently relying on the initial plea proceeding on May 4, 1987. This earlier proceeding is not discussed by assigned counsel and the minutes have not been provided to us.
Furthermore, defendant in his pro se supplemental brief submits counsel failed to raise an issue as to whether defendant's request for substitute trial counsel on January 13, 1987 was improperly denied. Again, assigned counsel did not order the minutes of this proceeding and did not raise the issue in his brief. While the People did order the minutes, and they are before us, they contain a reference to a prior request by defendant for substitute counsel. The minutes of this prior request, as well as the minutes of the May 4, 1987 plea proceeding, were apparently never ordered and, of course, are not discussed in assigned counsel's brief.
Accordingly, since there has not been a "conscientious examination of the record and the law" (People v. Gonzalez, supra, at 611) by assigned counsel, and neither the defendant's pro se brief nor our own review can provide a substitute for the advocacy of appellate counsel (see, People v. Casiano, 67 N.Y.2d 906), we direct the assignment of new counsel for defendant and the recalendaring of this appeal.
Concur — Sullivan, J.P., Asch, Kassal and Ellerin, JJ.