People v. Anderson

72 A.D.2d 535, 421 N.Y.S.2d 72, 1979 N.Y. App. Div. LEXIS 13581

Opinion

Appeal from judgment, Supreme Court, New York County, rendered August 2, 1978, convicting defendant of burglary in the third degree, and imposing a definite term of one year imprisonment, held in abeyance, counsel’s motion to be relieved is denied and counsel directed to proceed as hereinafter indicated. Counsel, assigned by this court to represent the defendant on appeal, has resorted to the procedure of People v Saunders (52 AD2d 833), and has moved to be relieved of his assignment. Yet, he argues that the fair market value of the property in question was not clearly established and cites specific examples. In addition, he claims the court erred in its charge on the presumption of innocence by stating it was "a device imposed by the law which places on the People the burden of coming forward with proof’. Such arguments defeat counsel’s application to withdraw (People v Shaw, 59 AD2d 873) and demonstrate that this appeal is not wholly frivolous. (Anders v California 386 US 738; People v Saunders, supra.) In his statement of facts counsel makes no mention that a Huntley hearing was held. Accordingly, counsel is directed to serve and file an adequate brief, within 30 days after notification of this decision by the Clerk of the Court. The District Attorney shall have 10 days to respond thereto. Concur—Sandler, J. P., Bloom, Lane, Silverman and Ross, JJ.