Monday, October 6, 2008

Assigned appellate counsel, who upon a review of the record conclude that there are no non-frivolous issues, may move to be relieved of the assignment (People v Crawford, 71 AD2d 38). In federal court this is known as an Anders brief (Anders v California, 386 US 738). However counsel must be very careful to file such a motion only if there are, in fact no frivolous issues. And even if there are such issues there are difficult issues that can arise in the decsion to file or not file such a motion.

First, the filing of such a motion, if warranted, may not only result in the attorney being relieved of the assignment, but also in the client's conviction being affirmed (see, e.g., People v Hill, 2008 NY Slip Op 07546 [4th Dept 10/3/08]). Thus, such a motion, in which defense counsel details why there are no issues to be raised on appeal from the conviction or sentence is the functional equivalent of a prosecutor's appellant's brief.

If that doesn't dissuade a defense attorney form filing such a motion, there is always the potential embarrassment of the court granting the motion, but then reassigning the appeal to another attorney because the first attorney failed to recognize that there non-frivolous issues that could be raised in the case. That happened in three cases in the most recent packet of Fourth Department decisions (People v Shampine (2008 NY Slip Op 07551 [4th Dept 10/3/08]; People v Spencer, 2008 NY Slip Op 07552 [4th Dept 10/3/08]; People v Spencer, 2008 NY Slip Op 07553 [4th Dept 10/3/08]).

Thus, for example, in People v Shampine (2008 NY Slip Op 07551 [4th Dept 10/3/08], the Court wrote

Upon a review of the record, we conclude that a nonfrivolous issue exists as to whether County Court erred in denying defendant's request for a downward departure from his presumptive risk level. Therefore, we relieve counsel of her assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.

It is clear that these motions are filed at your peril and your client's peril.

But what do you do when the only non-frivolous issue is one that could hurt your client? For example, what if the sentence imposed was unlawfully short? Does an attorney have to file a brief challenging the sentence as unlawful? (See, People v Ammons (41 AD3d 1325)).

What if the client entered a plea to a lesser offense and already served the entire sentence and you see a possible issue regarding the plea? If you raise the issue regarding the plea and win your client faces the potential of a more serious conviction and more time. What if you are unable to get a response from your client as to what to do?

The Second Circuit provides one answer. In United States v. Ibrahim (62 F.3d 72 [2d Cir. 1995]) the Court held that where the defendant has not requested that appellate counsel challenge the validity of a plea and has not made such a challenge in a pro se brief, cousnel can file an Anders brief which should either state that counsel believes that defendant would run unacceptable risk of adverse consequences in challenging the validity of the plea or discuss why there are no non-frivolous issues regarding the validity of the plea.

The Fourth Department has no clear holding guiding counsel. But the Spencer decisions cited above suggest that in the Fourth Department counsel canot file an Anders or Crawford motion is such a circumstance. In both of those cases the defendant has pled to a lesser offense and served his sentence of imprisonment. So counsel filed a Crawford motion rather than risking the client getting convicted of a more serious offense and receiving more time. In both cases the Court held that
The record establishes that defendant moved prior to sentencing to withdraw his plea. The facts raise the issue of whether the court abused its discretion in denying defendant's motion. Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue

Thus, unlike the Second Circuit, it appears that the Fourth Department wants assigned counsel to raise such an issue.

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