People v. Harrison

163 A.D.2d 872, 559 N.Y.S.2d 217, 1990 N.Y. App. Div. LEXIS 9569

Opinion

Case held, decision reserved, motion to relieve counsel’s assignment granted and new counsel to be assigned. Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of forcibly raping a 15-year-old girl in the City of Dunkirk during the early morning hours of April 6, 1986. Despite the fact that defendant was convicted following a lengthy jury trial in which numerous witnesses testified for both the prosecution and the defense, assigned appellate counsel concludes that the appeal is frivolous and that there are no issues of merit.

It is a denial of defendant’s constitutional right to effective assistance of appellate counsel for his lawryer to submit a brief requesting to be relieved of his assignment where there exist nonfrivolous issues for reversal of defendant’s conviction (People v Casiano, 67 NY2d 906, 907; People v Gonzales, 47 NY2d 606, 610). In our view, since there are at least two nonfrivolous issues with respect to the legal sufficiency and weight of the evidence to support defendant’s conviction, we shall hold this case, reserve decision and assign new counsel to submit a brief addressing these issues and any others counsel’s review of the record may disclose (see, People v Charnock, 163 AD2d 872 [decided herewith]; People v Cummings, 162 AD2d 943; People v Fuhrer, 143 AD2d 537; People v Fedora, 142 AD2d 957; People v Gaines, 122 AD2d 565). (Appeal from judgment of Chautauqua County Court, Adams, J.—rape, first degree.) Present—Callahan, J. P., Denman, Green, Pine and Balio, JJ.