People v. Irizarry

229 A.D.2d 1009, 645 N.Y.S.2d 361, 1996 N.Y. App. Div. LEXIS 9070

Opinion

—Case held, decision reserved, motion to relieve counsel of assignment granted and new counsel to be assigned. Memorandum: Defendant appeals from a judgment convicting him, following a lengthy jury trial, of murder in the second degree. Defendant’s assigned counsel has submitted an Anders/ Crawford brief (see, Anders v California, 386 US 738, reh denied 388 US 924; People v Crawford, 71 AD2d 38) in which he raises three potential issues and concludes that "none of these issues provide [sic] a legitimate non-frivolous basis for appeal.” We disagree.

From our review of the record, we conclude that there are a number of nonfrivolous issues that should be reviewed, such as: (1) whether County Court erred in precluding defendant’s psychiatric expert from rendering an opinion concerning defendant’s sanity; (2) whether the court erred in refusing to allow the jury to take defendant’s psychiatric records into deliberations with them; and (3) whether the court erred in denying defendant’s request to charge the affirmative defense of extreme emotional disturbance. Other issues that could also be raised on appeal are: (1) whether the court should have granted defense counsel’s request for a two-month extension to prepare for trial; (2) whether the court should have granted defendant’s motions for a mistrial after two prosecution witnesses mentioned defendant’s trial on unrelated charges in Oneida County; (3) whether the court improperly denied defendant’s request for a Huntley hearing on the ground of collateral estoppel; (4) whether the court should have provided the jury with a written copy of its instructions on the affirmative defense of lack of criminal responsibility; and (5) whether the jury verdict rejecting the affirmative defense of insanity is against the weight of the evidence.

It is a denial of defendant’s constitutional right to effective assistance of appellate counsel for defendant’s lawyer to submit a brief requesting to be relieved of his assignment where there exist nonfrivolous issues that may warrant reversal of defendant’s conviction (see, People v Casiano, 67 NY2d 906, 907). Because there are nonfrivolous issues that should be reviewed, we hold this case, reserve decision and assign new counsel to submit a brief addressing all issues that the record may disclose (see, People v Harrison, 163 AD2d 872). (Appeal from Judgment of Herkimer County Court, Kirk, J.— Murder, 2nd Degree.) Present—Denman, P. J., Pine, Fallon, Callahan and Balio, JJ.