People v. LaBoy

303 A.D.2d 162, 754 N.Y.S.2d 881, 2003 N.Y. App. Div. LEXIS 1973

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2003
• Status: Published

Opinion

Appeal from judgment, Supreme Court, New York County (Charles Solomon, J.), rendered April 3, 2001, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him, as a second felony offender, to a term of six years, held in abeyance, the application by assigned counsel to withdraw on the ground that the appeal is wholly frivolous (People v Saunders, 52 AD2d 833 [1976]) is granted to the extent of relieving counsel, assigning Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, New York, New York 10006, (212) 577-2523, as new counsel, and enlarging the time to perfect the appeal to the September 2003 Term of this Court.

While we express no opinion with respect to the merits, or lack thereof, of any possible issue, counsel’s submission is inadequate to demonstrate that a conscientious examination of the record and the applicable law has been performed (see People v Reyes, 231 AD2d 478 [1996]). In his letter to defendant advising him that no nonfrivolous issues exist on appeal, counsel misinformed defendant that, having pleaded guilty, he could not challenge the suppression ruling and could not challenge his sentence as harsh and excessive. Absent a waiver of the right to appeal, both of these issues survive a guilty plea (CPL 710.70 [2]; People v Thompson, 60 NY2d 513 [1983]). Since our own review cannot substitute for the single-minded advocacy of appellate counsel (People v Casiano, 67 NY2d 906 [1986]), assignment of new counsel is required (see People v Moore, 208 AD2d 357 [1994]). Concur — Andrias, J.P., Saxe, Rosenberger, Williams and Gonzalez, JJ.