70 N.Y.2d 1 (1987)
When appellate counsel determines that some but not all of the arguments a client wishes to raise on appeal are meritorious, counsel must argue the meritorious claims without disparaging the frivolous claims; the client should be advised to raise the frivolous claims pro se.
Summary
The defendant appealed his conviction, and assigned appellate counsel prepared a brief. Counsel argued one point he considered meritorious but disparaged the other nine points the defendant wanted to raise. The New York Court of Appeals held that this procedure denied the defendant effective assistance of counsel. The court reasoned that while counsel is not obligated to argue meritless claims, counsel should not undermine the client’s ability to raise those claims pro se. The proper procedure is to argue meritorious claims, advise the client why other claims are frivolous, and inform the client of their right to file a pro se brief on those issues.
Facts
Defendant was convicted and subsequently appealed. The Appellate Division assigned counsel to represent him on appeal.
Appellate counsel prepared a brief that addressed one point he believed had merit, ineffectiveness of trial counsel. In the brief, counsel explicitly stated that the defendant wished to raise ten points total, but that counsel believed the other nine points lacked merit.
Procedural History
After conviction, the defendant appealed to the Appellate Division, which assigned appellate counsel.
Appellate counsel submitted a brief arguing one point and disparaging the other nine points the defendant wanted to raise.
The New York Court of Appeals granted leave to appeal to determine whether the defendant was denied effective assistance of counsel.
Issue(s)
Whether appellate counsel provides ineffective assistance when, after determining that one of the issues advanced by the defendant has merit, counsel identifies and disparages the other issues the defendant wishes to raise, rather than advising the defendant to raise them pro se?
Holding
Yes, because by disparaging the defendant’s other arguments, counsel affirmatively undermined the defendant’s ability to present those arguments effectively in a pro se brief.
Court’s Reasoning
The Court of Appeals found that counsel’s actions denied the defendant effective assistance of counsel. The court distinguished this case from situations where an appeal is wholly frivolous, in which case counsel may seek to withdraw under Anders v. California. Here, counsel found one issue with substantial merit, obligating him to serve as an “active advocate in behalf of his client” (Anders v California, supra, at 744). While counsel was not required to discuss the meritless claims, he should not have identified and disparaged them, as this undermined the defendant’s ability to present them pro se.
The court outlined the proper procedure: counsel should argue the meritorious claims, explain to the client why the other claims are frivolous, and advise the client of the right to file a pro se brief. If the client chooses to do so, counsel should notify the court of the client’s intention to submit a pro se brief.
The court noted, “The procedure to be followed by appellate counsel when a client requests that several points be presented to the court, some with merit and some with none, is to argue the claim found meritorious and make no comment about claims considered frivolous. As to them, counsel should instruct his client why he believes the points frivolous and advise him that if he still thinks they should be addressed, defendant may file a pro se brief with the court.”
Because the proper procedure was not followed, the court reversed the order and remitted the matter to the Appellate Division for assignment of new counsel and de novo consideration of the appeal.