People v. James

210 A.D.2d 1002, 621 N.Y.S.2d 1007, 1994 N.Y. App. Div. LEXIS 13588

Opinion

—Case held, decision reserved, motion to relieve counsel’s assignment granted, and new counsel to be assigned. Memorandum: The constitutional right to effective assistance of counsel is denied when defense counsel submits a brief on appeal requesting to be relieved of his assignment where there exist nonfrivolous arguments for reversal of defendant’s conviction (see, People v Harrison, 163 AD2d 872). "[N]either a review of the record by the Appellate Division nor a pro se brief can substitute for the single-minded advocacy of appellate counsel” (People v Casiano, 67 NY2d 906, 907).

Assigned appellate counsel has filed an Anders/Crawford brief (see, Anders v California, 386 US 738; People v Crawford, 71 AD2d 38) identifying several potential issues but, after analyzing each one, dismissing them as frivolous. We disagree. Upon our review of the record, we conclude that there are several nonfrivolous issues that deserve more extensive legal analysis. Those issues include whether County Court erred in summarily denying defendant’s motion to suppress the cocaine found in defendant’s vehicle and the propriety of the court’s ruling, following a Huntley hearing, that the information provided by the confidential informant satisfied the AguilarSpinelli test and provided probable cause to arrest defendant.

Therefore, we reserve decision and direct the assignment of new counsel to brief the substantive issues on this appeal (see, People v Harrison, supra; People v Gaines, 122 AD2d 565). (Appeal from Judgment of Cattaraugus County Court, Himelein, J.—Attempted Criminal Possession Controlled Substance, 4th Degree.) Present—Green, J. P., Balio, Fallon, Callahan and Boehm, JJ.