Anders brief in New York

2026An adequate Anders brief "must, at a minimum, draw the Court's attention to the [*2]relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority" ( id. at 258; see People v Murray , 169 AD3d 227 , 231-232). "'[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal'" ( People v Ro

2026An [*2]adequate Anders brief "must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority" ( Matter of Giovanni S. [Jasmin A.] , 89 AD3d 252, 258 ). "[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal" ( id. ; see People

2024THE COURT: [Defendant], I'm sentencing you to one year incarceration under the care and custody of the Orange County Sheriff." On appeal, assigned counsel submitted an Anders brief ( see Anders v California , 386 US 738 [1967]).

2023Assigned counsel submitted an Anders brief setting forth the conclusion that there exist no nonfrivolous issues that could be raised on appeal ( see Anders v California , 386 US 738 [1967]).

2019As we have previously noted, "'[i]t is indeed rare that an Anders brief will reflect effective advocacy in a contested case such as this where a trial or full evidentiary hearing has occurred'" ( Matter of Driscoll v Oursler , 134 AD3d 1266, 1266 [2015], quoting Matter of Taylor v Fry , 42 AD3d 680, 681 [2007]; accord Matter of Reynolds v VanDusen , 128 AD3d 1294, 1295 [2015]).

2015As we have previously noted, "[i]t is indeed rare that an Anders brief will reflect effective advocacy in a contested case such as this where a trial or full evidentiary hearing has occurred” (Matter of Taylor v Fry, 42 AD3d 680, 681 [2007]).

2025"The filing of a sufficient Anders brief is essential to ensuring that an indigent party's rights are protected" ( id. at 256). "[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal" ( id. at 258; see People v Singh , 210 AD3d 1017 , 1018).

2025"The filing of a sufficient Anders brief is essential to ensuring that an indigent party's rights are protected" ( id. at 256). "[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal" ( id. at 258; see People v Singh , 210 AD3d 1017, 1018 ).

2022We find that there is an issue of arguable merit with respect to the validity of defendant's appeal waiver [FN1] that may potentially impact other issues that may be raised, such as the severity of the sentence and, thus, the appeal is not wholly frivolous ( see People v Shanks , 37 NY3d 244 , 251-253 [2021]; People v Bisono , 36 NY3d 1013 , 1017 [2020]; People v Thomas , 34 NY3d 545 , 565-566 [2019]; People v Lopez , 6 NY3d 248, 256 [2006]; People v Dye , 197 AD3d 1436, 1436 [2021]).

2006However, where a defendant received a discretionary sentence but did not waive the right to appeal (see People v Lopez, supra at 256, revg People v Billingslea, 16 AD3d 516 [2005]) or there is an arguable issue as to the enforceability or scope of an appeal waiver (see People v Lewis, 29 AD3d 1076 [2006]; People v Santalucia, 9 AD3d 740 [2004]), acceptance of an Anders brief would rarely be appropriate (see People v Stokes, supra; People v Thompson, 60 NY2d 513, 520 [1983], supra).

2022Notably, appellate counsel erred in addressing and rejecting the merits of arguable legal issues in the appellate brief, as "a no-merit, Anders brief is only appropriate where counsel concludes that . . . there are no issues of arguable merit and, therefore, that the appeal is 'wholly frivolous'" ( People v Williams , 176 AD3d 1317 , 1318 [2019], quoting People v Stokes , 95 NY2d 633, 636 [2001]).

2022Contrary to assigned counsel's contention, his obligation to [*2]submit an adequate Anders brief ( see Penson v Ohio , 488 US 75, 81-82 ; People v Stokes , 95 NY2d 633 ) and his obligation to refrain from disparaging or undermining claims the defendant wishes to pursue on appeal ( see People v Vasquez , 70 NY2d 1 ) do not conflict with each other ( see McCoy v Court of Appeals of Wis., Dist. 1 , 486 US 429, 440-444 ).

2021An adequate Anders brief "must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, [*2]applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority" ( Matter of Giovanni S. [Jasmin A.] , 89 AD3d at 258 ; see People v Murray , 169 AD3d 227 , 232). "[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the app

2019Here, the Anders brief submitted by the appellant's counsel was deficient because it failed to adequately analyze potential appellate issues or highlight facts in the record that might arguably support the appeal ( see Anders v California , 386 US 738 ; People v Gonzalez , 47 NY2d 606, 610-611 ; People v Dimon , 164 AD3d 600 , 601; People v Solomon , 162 AD3d 912 , 913; Matter of Giovanni S. [Jasmin A.] , 89 AD3d at 257-258 ).

2008As an appellate court’s review of the record cannot “substitute for the single-minded advocacy of appellate counsel” (People v Casiano, 67 NY2d 906, 907 [1986]), a brief that fails to satisfy this standard deprives a defendant of the right to the effective assistance of appellate counsel (People v Stokes, 95 NY2d 633 [2001]; People v Johnson, 11 Misc 3d 136[A] , 2006 NY Slip Op 50494[U] [App Term, 9th & 10th Jud Dists 2006]).

2001Deciding an arguable issue — such as the fairness of an enhanced sentence — which a defendant is statutorily permitted to raise in this Court in the absence of the “single-minded” advocacy of appellate counsel may, in particular cases, work to deprive a defendant of effective assistance of counsel to which he or she is entitled (see, People v Casiano, 67 NY2d 906 ; People v Gonzalez, supra, at 609-611 ; People v Emmett, 25 NY2d 354, 356; see also, Anders v California, supra, at 743-744).

2001This Court has consistently recognized and enforced the right of indigent defendants to effective assistance of counsel on appeal and the need to ensure that the Anders exception is carefully scrutinized and applied (see, People v Gonzalez, 47 NY2d *637 606, 610 [“assistance given must be that of an advocate rather than amicus curiae”]; People v Emmett, 25 NY2d 354, 356 [“There is no substitute for the single-minded advocacy of appellate counsel”]).

2001This Court has consistently recognized and enforced the right of indigent defendants to effective assistance of counsel on appeal and the need to ensure that the Anders exception is carefully scrutinized and applied (see, People v Gonzalez, 47 NY2d *637 606, 610 [“assistance given must be that of an advocate rather than amicus curiae”]; People v Emmett, 25 NY2d 354, 356 [“There is no substitute for the single-minded advocacy of appellate counsel”]).

2022Contrary to assigned counsel's contention, his obligation to [*2]submit an adequate Anders brief ( see Penson v Ohio , 488 US 75, 81-82 ; People v Stokes , 95 NY2d 633 ) and his obligation to refrain from disparaging or undermining claims the defendant wishes to pursue on appeal ( see People v Vasquez , 70 NY2d 1 ) do not conflict with each other ( see McCoy v Court of Appeals of Wis., Dist. 1 , 486 US 429, 440-444 ).

2003While we can discern that appellate counsel did not find the appeal to be wholly frivolous, warranting the filing of an Anders brief (see Anders v California, 386 US 738 [1967]), his disparagement of those issues sought to be raised by defendant “affirmatively undermined arguments his client wished the court to review and, for all practical purposes, precluded his client from presenting them effectively in a pro se brief” (People v Vasquez, 70 NY2d 1, 4 [1987]).

2026Here, the brief submitted by assigned counsel pursuant to Anders v California is deficient because it fails to analyze potential appellate issues with reference to legal authority or to highlight facts in the record that arguably might support the appeal ( see id. ; People v Ponce , 221 AD3d 914, 915 ).

2024An adequate Anders brief "must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, [*2]applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority" ( id. at 258). "[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal" ( id. ; see People v Ponce , 221 AD3d 914, 915 ).

2022"The filing of a sufficient Anders brief is essential to ensuring that an indigent party's rights are protected" ( Matter of Giovanni S. [Jasmin A.] , 89 AD3d at 256 ). [*2]"[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal" ( id. at 258 ; see People v Barger , 72 AD3d 696 ).

2011Similarly, in People v Barger ( 72 AD3d 696 [2010]), this Court held that counsél’s Anders brief was deficient where it “contained no reference to pretrial proceedings, merely mentioned that a jury trial was held without reciting the evidence presented at the trial, and did not analyze whether any possible issues for appeal arose from the pretrial proceedings, the trial, or the sentencing proceeding” (People v Barger, 72 AD3d at 697 ; see People v Henry, 143 AD2d 277, 278 [1988]).

2022Contrary to assigned counsel's contention, his obligation to [*2]submit an adequate Anders brief ( see Penson v Ohio , 488 US 75, 81-82 ; People v Stokes , 95 NY2d 633 ) and his obligation to refrain from disparaging or undermining claims the defendant wishes to pursue on appeal ( see People v Vasquez , 70 NY2d 1 ) do not conflict with each other ( see McCoy v Court of Appeals of Wis., Dist. 1 , 486 US 429, 440-444 ).

2019If the Anders brief satisfies a Step 1 review, the appellate court then reaches Step 2, which involves an "independent review of the record" to determine whether "counsel's assessment that there are no nonfrivolous issues for appeal is correct" ( Matter of Giovanni S. [Jasmin A.] , 89 AD3d at 258 , citing Penson v Ohio , 488 US at 84 ; see Anders v California , 386 US at 741-742 ).

2001In withholding a decision and assigning new counsel, we decline to decide the appeal on the record and Anders brief before us, as no immediate decision appears justified or necessary (see, People v Cruwys, supra, at 980; People v Crawford, 71 AD2d 38, 39 ; People v Saunders, supra, at 834 ; cf., People v Wasson, 266 AD2d 701, 702 , n).

1998Legal Aid thereafter submitted an Anders brief in which it contends that there are no nonfrivolous issues which would merit an appeal, and seeks to be relieved of its assignment as counsel for defendant (see, Anders v California, 386 US 738 ; People v Cruwys, 113 AD2d 979 , Iv denied 67 NY2d 650 ).

2006However, where a defendant received a discretionary sentence but did not waive the right to appeal (see People v Lopez, supra at 256, revg People v Billingslea, 16 AD3d 516 [2005]) or there is an arguable issue as to the enforceability or scope of an appeal waiver (see People v Lewis, 29 AD3d 1076 [2006]; People v Santalucia, 9 AD3d 740 [2004]), acceptance of an Anders brief would rarely be appropriate (see People v Stokes, supra; People v Thompson, 60 NY2d 513, 520 [1983], supra).

2006The Anders brief itself identifies numerous potential issues, and the lack of preservation does not foreclose review by this Court in the interest of justice (see CPL 470.15 [3] [c]; [6]; People v Santalucia, 9 AD3d 740, 740-741 [2004]).

2025Initially, we note that "appellate counsel erred in addressing and rejecting the merits of arguable legal issues in the appellate brief, as a no-merit, Anders brief is only appropriate where counsel concludes that there are no issues of arguable merit and, therefore, that the appeal is wholly frivolous" ( People v Faublas , 204 AD3d 1165, 1166 [3d Dept 2022] [internal quotation marks, ellipsis and citations omitted]).

2025Initially, we note that "appellate counsel erred in addressing and rejecting the merits of arguable legal issues in the appellate brief, as a no-merit, Anders brief is only appropriate where counsel concludes that there are no issues of arguable merit and, therefore, that the appeal is wholly frivolous" ( People v Faublas , 204 AD3d 1165, 1166 [3d Dept 2022] [internal quotation marks, ellipsis and citations omitted]).

2024Here, "the brief submitted by assigned counsel pursuant to Anders v California is deficient because it fails to adequately analyze potential appellate issues with references to facts that might arguably support the appeals" ( People v Ponce , 221 AD3d 914, 915 ; see People v Campbell , 199 AD3d 933, 934 ; People v Bowen , 192 AD3d 905, 906-907 ; People v Corley , 186 AD3d 1239, 1240 ; People v Robinson , 175 AD3d 719 , 721; People v Johnson , 126 AD3d 916, 917 ).

2023Here, the brief submitted by assigned counsel pursuant to Anders v California is deficient because it fails to adequately analyze potential appellate issues with references to facts that might arguably support the appeals ( see People v Campbell , 199 AD3d 933, 934 ; People v Bowen , 192 AD3d 905, 906-907 ; People v Corley , 186 AD3d 1239, 1240 ; People v Robinson , 175 AD3d 719 , 721; People v Johnson , 126 AD3d 916, 917 ).

2022People v McNair , 110 AD3d 742 ; People v Singleton , 101 AD3d 909 ).

2016Here, the Anders brief submitted by the appellant’s counsel is deficient because it fails to analyze potential appellate issues and fails to highlight facts in the record that might arguably support the appeal (see People v Emrich, 114 AD3d 872, 873 [2014]; People v McNair, 110 AD3d 742, 743 [2013]; People v Singleton, 101 AD3d 909, 910 [2012]; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256 ).

2022We find that there is an issue of arguable merit with respect to the validity of defendant's appeal waiver [FN1] that may potentially impact other issues that may be raised, such as the severity of the sentence and, thus, the appeal is not wholly frivolous ( see People v Shanks , 37 NY3d 244 , 251-253 [2021]; People v Bisono , 36 NY3d 1013 , 1017 [2020]; People v Thomas , 34 NY3d 545 , 565-566 [2019]; People v Lopez , 6 NY3d 248, 256 [2006]; People v Dye , 197 AD3d 1436, 1436 [2021]).

2022Defendant appealed, and this Court rejected counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on the appeal ( 197 AD3d 1436 [3d Dept 2021]).