In October I wrote about the risks of moving, pursuant to People v Crawford (71 AD2d 38) and Anders v California (386 US 738), to be relieved as assigned appellate attorney on the ground that the case presents no non-frivolous issues. One big risk that the Court will find that there are non-frivolous issues which counsel missed, which doesn’t make the attorney making the motion look very good. Those risks were realized in two decisions issued by the Fourth Department last week.
In People v Hunter 2009 NY Slip Op 02223 [4th Dept 3/20/09] the defendant was convicted upon a guilty plea of burglary in the second degree (Penal Law § 140.25 [2]), and was sentenced to a determinate term of imprisonment of six years and a three-year period of postrelease supervision. Defendant was also ordered to pay restitution in the amount of $5287.38. Defendant’s assigned appellate counsel moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), and submitted an affirmation in which he concluded that there were no nonfrivolous issues meriting the Court’s consideration. The Court wasn’t convinced:
The record reveals that restitution was not part of the plea agreement. This fact raises the issue of whether County Court erred in ordering defendant to pay restitution without affording him an opportunity to withdraw his plea (see People v Ponder, 42 AD3d 880, lv denied 9 NY3d 925). Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel’s review of the record may disclose.
Similarly, in People v Pett 2009 NY Slip Op 02227 [4th Dept 3/20/09], in which the defendant’s assigned appellate counsel moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), the Fourth Department noted that the record establishes that the trial court failed to advise the defendant of the postrelease supervision component of his sentence during the plea allocution. The Court held that
This fact raises the issue of whether defendant’s plea was knowing, voluntary and intelligent (see People v Louree, 8 NY3d 541). Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel’s review of the record may disclose.
The message sent by the Court is clear. Do not file a Crawford motion unless it is clear that there is no issue that can be raised on appeal.
