People v. Braithwaite

Appeal by the defendant from a judgment of the Supreme Court, Kings County (DeLury, J.), rendered February 17, 1995, convicting *486 him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California ( 386 US 738 ), in which he moves to be relieved of the assignment to prosecute this appeal.

Ordered that the motion is granted, Gary Cohen, is relieved as attorney for the defendant and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,

Ordered that Susan Marhoffer, P.O. Box 784 White Plains, New York, 10604, is assigned as counsel to perfect the appeal; and it is further,

Ordered that the People are directed to furnish a copy of the stenographic minutes to the new assigned counsel; and it is further,

Ordered that new counsel shall serve and file a brief on behalf of the defendant within 90 days of the date of this decision and order and the People shall serve and file their brief within 120 days of the date of this decision and order; by prior decision and order of this Court, the defendant was granted leave to prosecute the appeal on the original papers (including the typewritten stenographic minutes) and on the typewritten briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.

The defendant’s counsel has submitted a brief in which he concludes that there are no nonfrivolous issues to be raised on appeal. The People suggest in their brief that there are color-able issues regarding a reverse-Batson claim (see, Batson v Kentucky, 476 US 79 ) and the closure of the courtroom during the testimony of an undercover officer. Based on this Court’s independent review of the record, we conclude that there are nonfrivolous issues which could be raised on appeal, including, among other things, the issues referred to by the People and the issue of whether the defendant’s sentence was unduly harsh. Under these circumstances, the motion of the defendant’s assigned counsel to be relieved as counsel is granted and new appellate counsel is assigned (see, People v Davis, 73 NY2d 864 ; People v Casiano, 67 NY2d 906 ; People v Bunbury, 210 AD2d 420 ). Rosenblatt, J. P., Ritter, Friedmann and Florio, JJ., concur.