People v. Ninham

164 A.D.2d 970, 559 N.Y.S.2d 801, 1990 N.Y. App. Div. LEXIS 16815

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 1990
• Status: Published

Opinion

Case held, decision reserved, motion to relieve counsel of assignment granted, and new counsel to be assigned. Memorandum: Defendant’s assigned appellate counsel has moved to be relieved of his assignment pursuant to People v Crawford (71 AD2d 38) on the ground that any appeal would be frivolous. Counsel failed to follow our decision in People v Crawford (supra, at 39) by failing to provide a brief that "states all points which may arguably provide a basis for appeal, with references to the record and citation of applicable legal authorities”. In his affidavit in support of the motion to be relieved, counsel identifies arguable issues, but concludes, without citation to legal authority, that they are without merit. The determination whether an issue is frivolous rests with the court, not assigned counsel (People v Crawford, supra, at 39). Because we find several arguable issues, including but not limited to the propriety of the suppression court’s determination and the imposition of consecutive sentences, we relieve counsel of his assignment and assign new counsel to brief those issues, as well as any other issues that counsel’s review of the record may disclose (see, People v Charnock, 163 AD2d 872). We decline to review the record at this time because a review of the record by an appellate court cannot "substitute for the single-minded advocacy of appellate counsel” (People v Casiano, 67 NY2d 906, 907; see also, People v Gonzalez, 47 NY2d 606). (Appeal from judgment of Niagara County Court, DiFlorio, J.—murder, second degree.) Present—Callahan, J. P., Doerr, Denman, Lawton and Davis, JJ.