People v. Myrick

69 A.D.2d 804, 416 N.Y.S.2d 748, 1979 N.Y. App. Div. LEXIS 11447

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1979
• Status: Published

Opinion

Appeal from judgment, Supreme Court, Bronx County, rendered September 23, 1977, convicting defendant, on his plea of guilty, of criminal possession of a weapon in the second degree and sentencing him thereupon to four to eight years, held in abeyance, counsel’s motion to be relieved denied with leave to renew, and counsel directed to serve and file a supplemental brief within 20 days from the date of the order entered hereon. Respondent shall serve and file its brief, if any, within 10 days after service of appellant’s supplemental brief. In asking to be relieved, appellant’s counsel states that he has reviewed the record and finds no nonfrivolous issues. He has failed, however, in his scant two-page brief, to recite "the underlying facts and [to highlight] anything in the record that might arguably support the appeal.” (People v Saunders, 52 AD2d 833.) Our own review of the record reveals at least one arguable issue that should have been brought to our attention, viz., the denial of defendant’s application to withdraw his guilty plea. Counsel has failed to comply with the procedures to be followed in such an application. (See Anders v California, 386 US 738; People v Saunders, supra.) Accordingly, counsel is directed to review the record and, no later than 20 days following the date of the order entered hereon, to serve and file an adequate brief. The District Attorney shall have 10 days thereafter to respond. Should counsel, after further review of the matter, still be of the view that no nonfrivolous issues exist, he may, upon a proper showing, renew his motion. (See People v Gega, 69 AD2d 772; People v Moore, 56 AD2d 517.) Concur—Sullivan, J. P., Bloom, Lane, Markewich and Silverman, JJ.