People v. Spinks

• Decision Date: 30 December 1996
• Citation: 234 A.D.2d 985,651 N.Y.S.2d 823
• Parties: PEOPLE of the State of New York, Respondent, v. Demetrious SPINKS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 823

651 N.Y.S.2d 823

234 A.D.2d 985

PEOPLE of the State of New York, Respondent, v. Demetrious SPINKS, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 30, 1996.

J. Michael Kehoe, Brockport, for Appellant.

Joseph V. Cardone, Albion, for Respondent.

Before DENMAN, P.J., and GREEN, PINE, CALLAHAN and BOEHM, JJ.

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 A.D.2d 38, 421 N.Y.S.2d 485) where there are nonfrivolous arguments for reversal or modification of defendant's conviction (see, People v. Gonzalez, 47 N.Y.2d 606, 610, 419 N.Y.S.2d 913, 393 N.E.2d 987). 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 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 N.Y.2d 906, 501 N.Y.S.2d 808, 492 N.E.2d 1224; People v. Lake, 172 A.D.2d 1051, 1052, 571 N.Y.S.2d 409).

Case held, decision reserved, motion to relieve counsel of assignment granted and new counsel to be assigned.