Opinion
July 13, 1990
Appeal from the Chautauqua County Court, Adams, J.
Present — Callahan, J.P., Denman, Green, Pine and Balio, JJ.
Case held, decision reserved, motion to relieve counsel's assignment granted and new counsel to be assigned. Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of forcibly raping a 15-year-old girl in the City of Dunkirk during the early morning hours of April 6, 1986. Despite the fact that defendant was convicted following a lengthy jury trial in which numerous witnesses testified for both the prosecution and the defense, assigned appellate counsel concludes that the appeal is frivolous and that there are no issues of merit.
It is a denial of defendant's constitutional right to effective assistance of appellate counsel for his lawyer to submit a brief requesting to be relieved of his assignment where there exist nonfrivolous issues for reversal of defendant's conviction (People v. Casiano, 67 N.Y.2d 906, 907; People v. Gonzales, 47 N.Y.2d 606, 610). In our view, since there are at least two nonfrivolous issues with respect to the legal sufficiency and weight of the evidence to support defendant's conviction, we shall hold this case, reserve decision and assign new counsel to submit a brief addressing these issues and any others counsel's review of the record may disclose (see, People v. Charnock, 163 A.D.2d 872 [decided herewith]; People v. Cummings, 162 A.D.2d 943; People v. Fuhrer, 143 A.D.2d 537; People v. Fedora, 142 A.D.2d 957; People v. Gaines, 122 A.D.2d 565).