| People v Foster |
| 2011 NY Slip Op 09667 [90 AD3d 1070] |
| December 27, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Hasheem Foster, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons of counsel; Lisa A.Schwartz on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Grella, J.),rendered May 4, 2010, convicting him of robbery in the first degree, robbery in the second degree(three counts), criminal possession of a weapon in the second degree, criminal possession of aweapon in the third degree, and criminal use of a firearm in the first degree, upon his plea ofguilty, and imposing sentence. Assigned counsel has submitted a brief in accordance withAnders v California (386 US 738 [1967]), in which he moves for leave to withdraw ascounsel for the appellant.
Ordered that the motion of Alan Katz for leave to withdraw as counsel is granted, and he isdirected to turn over all papers in his possession to new counsel assigned herein; and it is further,
Ordered that Marianne Karas, P.O. Box 277, Armonk, New York, 10504, is assigned ascounsel to perfect the appeal from the judgment of conviction rendered May 4, 2010; and it isfurther,
Ordered that new counsel shall serve and file a brief on behalf of the appellant within 90 daysof the date of this decision and order on motion and the respondent shall serve and file its briefwithin 30 days after the brief on behalf of the appellant is served and filed. By prior decision andorder on motion of this Court dated November 5, 2010, the appellant was granted leave toprosecute the appeal as a poor person, with the appeal to be heard on the original papers(including a certified transcript of the proceedings) and on the briefs of the parties, who weredirected to file nine copies of their respective briefs and to serve one copy on each other.
In the brief submitted on behalf of the defendant, assigned counsel "merely recite[s] theunderlying facts, and state[s] a bare conclusion that, after reviewing the record . . . ,it is [counsel's] opinion that there are no nonfrivolous issues to be raised on appeal" (Matterof Giovanni S. [Jasmin A.], 89 AD3d 252, 258 [2d Dept 2011]). As such, the brief does notdemonstrate that assigned counsel acted "as an active advocate on behalf of his . . .client" (id. at 256 [internal quotation marks omitted]; see People v Stokes, 95NY2d 633, 636 [2001]; [*2]People v Saunders, 52 AD2d833 [1976]). Accordingly, we must assign new counsel to represent the appellant (see Matterof Giovanni S. [Jasmin A.], 89 AD3d at 258 [2011]). In any event, upon this Court'sindependent review of the record, we conclude that potentially nonfrivolous issues exist withrespect to, inter alia, the admissibility of the defendant's statements to the police (see People vAnderson, 42 NY2d 35 [1977]). Skelos, J.P., Belen, Lott and Cohen, JJ., concur.