Majority
p. 985The People of the State of New York, Respondent, v Demetrious Spinks, Appellant. [651 NYS2d 823]
—Case held, decision reserved, motion to relieve counsel of assignment granted and new counsel to be assigned. Memorandum: It is a denial of a defendant’s constitutional right to effective assistance of appellate counsel for his lawyer to submit a brief requesting to be relieved of his assignment (see, People v Crawford, 71 AD2d 38 ) where there are nonfrivolous arguments for reversal or modification of defendant’s conviction (see, People v Gonzalez, 47 NY2d 606 , 610). Our review of the record reveals several nonfrivolous issues, viz., that the evidence is insufficient to establish that the complainant suffered "physical injury” or to show that defendant intended to prevent complainant from
p. 986
performing a lawful duty, and that County Court erred in instructing the jury on justification. Consequently, we relieve counsel of his assignment and assign new counsel to brief those issues, as well as any other issues that counsel’s review of the record may disclose (see, People v Casiano, 67 NY2d 906 ; People v Lake, 172 AD2d 1051 , 1052). (Appeal from Judgment of Orleans County Court, Punch, J.—Assault, 2nd Degree.) Present—Denman, P. J., Green, Pine, Callahan and Boehm, JJ.
Cases cited
- People v. Crawford 71 AD2d 38 p. 985
- People v. Gonzalez 47 NY2d 606 at 610 p. 985
- People v. Casiano 67 NY2d 906 p. 986
- People v. Lake 172 AD2d 1051 at 1052 p. 986