Argued March 24, 1986
Decided April 3, 1986
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Peter McQuillan, J.
Thomas H. Busch for appellant.
Robert M. Morgenthau, District Attorney (Barbara A. Sheehan and Mark Dwyer of counsel), for respondent.
The order should be reversed and the matter remitted to the Appellate Division for a de novo consideration of defendant's appeal.
Several nonfrivolous issues can be identified in the record of the trial court proceedings which resulted in defendant's conviction. Nevertheless, his assigned appellate counsel filed an Anders/Saunders brief (see, Anders v California, 386 U.S. 738; People v Saunders, 52 A.D.2d 833), claiming that the appeal was frivolous. He did so without (a) consulting with defendant or (b) analyzing the issues presented by the record. Although the Appellate Division, based on its review of defendant's pro se brief, found that the record presented appealable issues, it found none warranted reversal, and affirmed the conviction without assigning new counsel to present the appeal.
Defendant did not waive his right to counsel and the Appellate Division's failure to make a new assignment after discovering nonfrivolous issues were present deprived him of his right to the effective assistance of counsel on appeal. Our decision in People v Gonzalez ( 47 N.Y.2d 606) is controlling on the issue and should have been followed (see also, Evitts v Lucey, 469 U.S. 387; Anders v California, supra). Inexplicably, the District Attorney's brief does not even cite, let alone distinguish, this recent decision or other pertinent decisions discussing this issue. As we have noted before, neither a review of the record by the Appellate Division nor a pro se brief can substitute for the single-minded advocacy of appellate counsel (see, People v Gonzalez, supra, pp 610-611). A new assignment of counsel and reconsideration of the appeal is required.
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur in memorandum.
Order reversed, etc.