People v. Foster

90 A.D.3d 1070, 934 N.Y.2d 865

Opinion

In the brief submitted on behalf of the defendant, assigned counsel “merely recite[s] the underlying facts, and state [s] a bare conclusion that, after reviewing the record . . . , it is [counsel’s] opinion that there are no nonfrivolous issues to be raised on appeal” (Matter of Giovanni S. [Jasmin A.], 89 AD3d [2d Dept 2011]). As such, the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his . . . client” (id. at 256 [internal quotation marks omitted]; see People v Stokes, 95 NY2d 633, 636 [2001]; People v Saunders, 52 AD2d 833 [1976]). Accordingly, we must assign new counsel to represent the appellant (see Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258 [2011]). In any event, upon this Court’s independent review of the record, we conclude that potentially nonfrivolous issues exist with respect to, inter alia, the admissibility of the defendant’s statements to the police (see People v Anderson, 42 NY2d 35 [1977]). Skelos, J.E, Belen, Lott and Cohen, JJ., concur.