In re Max F.

Appellate Division of the Supreme Court of New York

In re Max F.

90 A.D.3d 1047, 934 N.Y.2d 834

Appellate Division of the Supreme Court of the State of New York·Decided December 27, 2011·Published·Cited by 3 cases

Opinion

[1048] The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738 [1967]) was deficient in that counsel failed to analyze any possible appellate issues or highlight anything in the record that might arguably support the appeal (id. at 744; see Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v Stokes, 95 NY2d 633, 637 [2001]; People v Saunders, 52 AD2d 833 [1976]). To the contrary, the “argument” section of counsel’s brief merely states in conclusory fashion: “The undersigned has fully analyzed the record, performed the necessary legal research, spoke to Appellant, the Attorneys for the Children and trial counsel for Appellant, and discussed the analysis with Appellant following review of the transcript and completion of legal research, and it is the opinion of the undersigned that there are no non-frivolous issues to raise on appeal.” Accordingly, the appellant is entitled to new counsel (see People v Barger, 72 AD3d 696 [2010]; People v Henry, 143 AD2d 277, 278 [1988]).

Moreover, upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the finding of neglect was supported by a preponderance of the evidence (see Family Ct Act § 1012 [f] [i]; 1046 [b] [i]), whether the Family Court improvidently exercised its discretion in denying the appellant’s [1049] request for substitution of counsel, and whether the appellant was afforded the effective assistance of counsel. Skelos, J.R, Leventhal, Belen and Roman, JJ., concur.

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[1048] The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738 [1967]) was deficient in that counsel failed to analyze any possible appellate issues or highlight anything in the record that might arguably support the appeal (id. at 744; see Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v Stokes, 95 NY2d 633, 637 [2001]; People v Saunders, 52 AD2d 833 [1976]). To the contrary, the “argument” section of counsel’s brief merely states in conclusory fashion: “The undersigned has fully analyzed the record, performed the necessary legal research, spoke to Appellant, the Attorneys for the Children and trial counsel for Appellant, and discussed the analysis with Appellant following review of the transcript and completion of legal research, and it is the opinion of the undersigned that there are no non-frivolous issues to raise on appeal.” Accordingly, the appellant is entitled to new counsel (see People v Barger, 72 AD3d 696 [2010]; People v Henry, 143 AD2d 277, 278 [1988]).

Moreover, upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the finding of neglect was supported by a preponderance of the evidence (see Family Ct Act § 1012 [f] [i]; 1046 [b] [i]), whether the Family Court improvidently exercised its discretion in denying the appellant’s [1049] request for substitution of counsel, and whether the appellant was afforded the effective assistance of counsel. Skelos, J.R, Leventhal, Belen and Roman, JJ., concur.

In re Max F., 90 A.D.3d 1047, 934 N.Y.2d 834 (N.Y. Ct. App. 2011).

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