Summary
In People v. Saunders (52 A.D.2d 833) this court established the procedure to be followed when an appeal is deemed wholly frivolous.
Summary of this case from People v. HunterOpinion
May 27, 1976
Motion by assigned counsel to be relieved and to have alternate counsel assigned on this appeal denied without prejudice. Appellant's time to perfect this appeal enlarged to the September 1976 Term. Assigned counsel asks to be relieved, stating that his review of the trial minutes does not reveal a valid issue to be raised on this appeal. Appellant joins in his counsel's application, and requests that a new attorney be assigned. The moving papers submitted here are insufficient to warrant the granting of the requested relief. The Supreme Court, in Anders v California ( 386 U.S. 738), established the procedure to be followed in this type of situation. Upon finding his case to be wholly frivolous, after a conscientious examination of the record, counsel should so advise the court and request permission to withdraw. Such request should be accompanied by a brief reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. The brief should be prepared in accordance with the applicable rules of this court, and placed on the Appeals Calendar within the time period prescribed for perfecting the appeal. Appellant should be furnished with a copy of the brief, and given an opportunity to raise any points he chooses. The court will then examine all of the proceedings to determine whether the appeal is wholly frivolous. If such a finding is made, the court will grant counsel's request to withdraw, and affirm the judgment of conviction. But, if the court finds any legal points arguable on their merits, it will afford the appellant the assistance of new counsel to argue the appeal. In certain limited classes of cases (e.g., where the sentence imposed was excessive) the interests of justice may require an immediate disposition of the appeal by the court in order to avoid the delay the assignment of a new attorney would necessitate. Time to perfect the appeal is enlarged to the September 1976 Term of this court.
Concur — Kupferman, J.P., Birns, Capozzoli and Lane, JJ.