New York Law Review

Tag: People v. Vasquez

  • People v. Vasquez, 20 N.Y.3d 461 (2013): Ineffective Assistance of Counsel and CPL 710.30 Notice

    People v. Vasquez, 20 N.Y.3d 461 (2013)

    A defense counsel’s failure to object to the admission of identification testimony not included in a CPL 710.30 notice does not constitute ineffective assistance of counsel unless the error was egregious, prejudicial, and resulted in a likelihood of a different outcome.

    Summary

    Vasquez was convicted of attempted robbery after a victim identified him to police both before and after his arrest. The prosecution’s CPL 710.30 notice only mentioned the pre-arrest identification. Vasquez argued that his trial counsel was ineffective for failing to object to the testimony regarding the post-arrest identification, claiming a violation of CPL 710.30. The Court of Appeals affirmed the conviction, holding that even if counsel erred, it was not egregious or prejudicial enough to constitute ineffective assistance, especially given the other strong evidence against Vasquez. The court emphasized that a showing of prejudice, while not indispensable under the state constitution, is significant in evaluating such claims.

    Facts

    The victim was approached by Vasquez, who asked for money and pointed a knife at him. The victim fled into a store and called 911. Officer Herbert responded and the victim pointed out Vasquez as the perpetrator. After arresting Vasquez but before taking him to the station, Herbert asked the victim if he was sure Vasquez was the man, and the victim confirmed. At trial, the victim could not identify Vasquez in court but testified he had pointed out the robber to the police. The victim also testified that the robber threw a knife near a tree. Herbert recovered a knife from that location. Vasquez admitted to asking the victim for change just before the arrest.

    Procedural History

    Vasquez was convicted of attempted robbery. He appealed, arguing a CPL 710.30 violation and ineffective assistance of counsel. The Appellate Division affirmed, finding the CPL 710.30 issue unpreserved and any error harmless, also holding that defense counsel provided meaningful representation. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether defense counsel’s failure to object to testimony regarding a post-arrest identification, not included in the CPL 710.30 notice, constituted ineffective assistance of counsel.

    Holding

    No, because even assuming the failure to object was an error, it was not so egregious and prejudicial as to deprive the defendant of a fair trial, considering the other evidence presented against him.

    Court’s Reasoning

    The Court of Appeals reasoned that even if the CPL 710.30 notice was deficient, and even if a successful motion to preclude the post-arrest identification testimony could have been made, the failure to make such a motion did not constitute ineffective assistance of counsel. The court emphasized that counsel’s performance should not be second-guessed with hindsight. Additionally, the court noted the presence of other substantial evidence against Vasquez, including the victim’s initial identification, the recovery of the knife from the described location, and Vasquez’s admission to asking the victim for money. The court stated, “[A]n argument [for preclusion] could have been made, but not an argument ‘so compelling that a failure to make it amounted to ineffective assistance of counsel’” (People v Carter, 7 N.Y.3d 875, 877 [2006]). While prejudice is not indispensable under the state constitution for an ineffective assistance claim, its absence is significant here, where the alleged error was a single, non-egregious mistake. The court also pointed out that the trial court could have allowed a late notice and suppression hearing under CPL 710.30(2) if “good cause” was shown, which might have mitigated any initial error. The court noted the People’s argument that the point-out and post-arrest conversation were part of the same continuum, lessening the impact of the omission from the CPL 710.30 notice.

  • People v. Vasquez, 1 N.Y.3d 849 (2004): Clarifying a Court’s Power to Modify Sentences After Commencement

    1 N.Y.3d 849 (2004)

    A trial court lacks the inherent power to modify a lawful sentence of imprisonment after it has commenced, unless the record clearly indicates a judicial oversight, an accidental mistake of fact, or an inadvertent misstatement that creates ambiguity in the record.

    Summary

    Vasquez was convicted of murder and sentenced to 50 years to life. The sentencing court did not specify whether this sentence would run consecutively or concurrently with a prior undischarged sentence. The Department of Correctional Services (DOCS) thus credited Vasquez’s prior time served against the new sentence. The People moved to reopen the sentencing, arguing the court intended the sentences to run consecutively. The trial court agreed and modified the sentence. The Court of Appeals reversed, holding that because the original sentencing record lacked any indication the court intended a consecutive sentence, modification was barred by CPL 430.10.

    Facts

    In 1979, Vasquez was convicted of murder and sentenced to 15 years to life. After being paroled, he committed two more murders in 1995. He was arrested in 1999 for a parole violation and subsequently indicted for the 1995 murders. After a mistrial, he was convicted of four counts of second-degree murder. The trial court sentenced him to 25 years to life on each count, with intentional murder sentences running consecutively, resulting in 50 years to life.

    Procedural History

    The trial court initially sentenced Vasquez without specifying whether the new sentence was consecutive to the prior undischarged term. After DOCS credited the prior time served, the People moved to reopen sentencing. The trial court granted the motion and modified the sentence to run consecutively. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether a trial court has the inherent power to modify its lawful sentence of imprisonment where the court did not specify whether the sentence was to run consecutively or concurrently to an undischarged term of imprisonment on an unrelated conviction.

    Holding

    1. No, because the record of the original sentencing proceeding does not indicate that the judge intended to impose consecutive sentences, CPL 430.10 precluded the alteration of the defendant’s sentence.

    Court’s Reasoning

    The Court of Appeals held that CPL 430.10 generally prohibits changing a sentence of imprisonment once it has commenced, except as specifically authorized by law. While courts retain the inherent power to correct clerical errors or conform the record to the truth, this power must be exercised cautiously and only when a mistake clearly appears. The Court distinguished this case from prior cases involving negotiated plea agreements where a sentencing error contradicted the agreement.

    The Court relied on People v. Adkinson, where it held that a court could not later amend a sentence to specify consecutive terms when the original sentence was silent on the issue. Penal Law § 70.25(1)(a) dictates that silence regarding whether a sentence runs consecutively or concurrently results in a concurrent sentence by operation of law. The Court emphasized that “[t]he authority to modify a lawful sentence that has commenced is limited to situations where the record in the case clearly indicates the presence of judicial oversight based upon an accidental mistake of fact or an inadvertent misstatement that creates ambiguity in the record.” Because the original record did not indicate an intent for a consecutive sentence, the modification was improper. The Court noted, “[i]n no instance have we recognized a court’s inherent power to vacate a plea and sentence over defendant’s objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment”.

  • People v. Vasquez, 88 N.Y.2d 742 (1996): Hearsay Exception for Present Sense Impression Requires Contemporaneity

    88 N.Y.2d 742 (1996)

    The present sense impression exception to the hearsay rule requires that the statement be made contemporaneously with the event being described, leaving no time for reflection.

    Summary

    The New York Court of Appeals held that a 911 call reporting a past crime was improperly admitted as a present sense impression. The caller identified the defendant as the person who committed a murder several hours earlier. The court reasoned that the time lapse between the event and the statement allowed for reflection, undermining the reliability of the statement. While the admission was deemed erroneous, the court found it to be harmless given the overwhelming evidence of guilt from eyewitness testimony.

    Facts

    On August 12, 1993, at approximately 4:30 a.m., the defendant, Vasquez, allegedly shot and killed the victim. Two eyewitnesses identified Vasquez as the shooter. Between 7:11 a.m. and 7:31 a.m., an anonymous caller made 911 calls claiming to observe the person who committed the murder earlier that morning. The caller described the suspect’s clothing. These 911 tapes were introduced as evidence at trial.

    Procedural History

    The defendant was convicted of homicide and weapons possession. The trial court admitted the 911 tapes under the present sense impression exception to the hearsay rule. The defendant appealed, arguing the tapes were improperly admitted. The Appellate Division affirmed the conviction. The New York Court of Appeals then reviewed the case.

    Issue(s)

    1. Whether the 911 tapes were properly admitted under the present sense impression exception to the hearsay rule when the caller referred to observations made several hours earlier.

    2. Whether the admission of the 911 tapes, if erroneous, constituted harmless error.

    Holding

    1. No, because the caller had time for reflection between the event (the shooting at 4:30 a.m.) and the 911 call (made after 7:00 a.m.), which negates the reliability that underlies the present sense impression exception.

    2. Yes, because the proof of guilt was overwhelming based on eyewitness testimony, and there was no significant probability that the jury would have acquitted had the 911 tapes not been introduced.

    Court’s Reasoning

    The Court of Appeals determined that the 911 tapes were erroneously admitted because they did not meet the requirements of the present sense impression exception. The court emphasized that the key to this exception is the contemporaneity of the statement and the event observed, which eliminates the possibility of reflection or faulty recollection. The court quoted People v. Brown, stating that “because the contemporaneity of the event observed and the hearsay statement describing it leaves no time for reflection * * * the likelihood of deliberate misrepresentation or faulty recollection is eliminated.” The court found that the three-hour time lapse provided ample opportunity for reflection, rendering the identification unreliable.

    The court then addressed whether the error was harmless. It applied the nonconstitutional harmless error standard from People v. Crimmins, which requires assessing whether (1) proof of guilt was overwhelming; and (2) there was no significant probability that the jury would have acquitted had the proscribed evidence not been introduced. The court found that the eyewitness testimony and the defendant’s flight demonstrated overwhelming evidence of guilt. The court further noted that the 911 tapes lacked detail and contained potential discrepancies, making it unlikely that the jury’s verdict depended on their admission. Therefore, the court concluded that the erroneous admission of the 911 tapes was harmless error.

  • People v. Vasquez, 96 N.Y.2d 950 (2001): Collateral Estoppel in Criminal Prosecutions

    People v. Vasquez, 96 N.Y.2d 950 (2001)

    Collateral estoppel should not be liberally applied in criminal cases, as the paramount concern is the correct determination of guilt or innocence.

    Summary

    The New York Court of Appeals held that the State was not collaterally estopped from prosecuting the defendant for sexual abuse in the first degree, even though a prior probation revocation hearing terminated in his favor. The court emphasized that collateral estoppel principles are not to be liberally applied in criminal cases, where the determination of guilt or innocence is paramount. The People’s incentive to litigate is also stronger in a felony prosecution compared to a probation revocation proceeding.

    Facts

    The defendant pleaded guilty to sexual abuse of a child and was sentenced to five years’ probation. While on probation, he allegedly sexually abused a six-year-old girl in his care. A declaration of delinquency was filed, charging him with violating his probation. He was subsequently indicted on one count of first-degree sexual abuse of a minor and one count of endangering the welfare of a child.

    Procedural History

    A probation revocation hearing was held in Supreme Court, where the court found that the People had not proven by a preponderance of the evidence that the defendant violated his probation. Subsequently, the Supreme Court granted the defendant’s motion to dismiss the sexual abuse count of the indictment based on collateral estoppel. The Appellate Division reversed, holding that collateral estoppel did not preclude trial on that count. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether the State is collaterally estopped from prosecuting the defendant for sexual abuse in the first degree following a probation revocation hearing that terminated in his favor.

    Holding

    No, because strong policy considerations militate against giving issues determined in prior litigation preclusive effect in a criminal case, and the correct determination of guilt or innocence is paramount.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s order, holding that collateral estoppel did not prevent prosecution on the indictment. The court acknowledged that collateral estoppel applies in criminal prosecutions “to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” (People v Acevedo, 69 NY2d 478, 484-485). However, the court emphasized that these principles are not to be liberally applied in criminal cases. The court cited People v. Fagan, 66 NY2d 815, 816, stating:

    “Strong policy considerations militate against giving issues determined in prior litigation preclusive effect in a criminal case, and indeed we have never done so (see, People v Plevy, 52 NY2d 58, 65, 4). The correct determination of guilt or innocence is paramount in criminal cases (People v Berkowitz, 50 NY2d 333, 345), and the People’s incentive to litigate in a felony prosecution would presumably be stronger than in a parole revocation proceeding.”

    The court reasoned that the paramount concern in criminal cases is the correct determination of guilt or innocence. The People’s incentive to litigate is stronger in a felony prosecution than in a probation revocation proceeding. This difference in incentive and the higher standard of proof required in a criminal trial (beyond a reasonable doubt) compared to a probation revocation hearing (preponderance of the evidence) justified the application of collateral estoppel with caution.

  • People v. Vasquez, 88 N.Y.2d 561 (1996): Admissibility of 911 Calls as Present Sense Impressions

    88 N.Y.2d 561 (1996)

    For a statement to be admissible under the present sense impression exception to the hearsay rule, it must be made substantially contemporaneously with the event it describes and be corroborated by independent evidence supporting the statement’s content.

    Summary

    This case consolidates three appeals concerning the admissibility of 911 calls as present sense impressions. The New York Court of Appeals clarified the requirements for this hearsay exception, emphasizing contemporaneity and corroboration. In People v. Vasquez, a 911 call reporting a shooting was deemed inadmissible due to lack of corroboration of the caller’s description. In People v. Dalton, the defendant’s 911 call after a shooting was excluded because it wasn’t contemporaneous with the event. In People v. Adkinson, a 911 call reporting a sexual assault was deemed inadmissible. The Court affirmed the lower courts’ decisions, stressing the need for statements to be made during or immediately after the event and supported by independent evidence to ensure reliability.

    Facts

    • People v. Vasquez: An anonymous 911 caller reported a shooting, describing a black man fleeing. A defense witness described the shooter differently.
    • People v. Dalton: The defendant called 911 after shooting the victim, claiming self-defense.
    • People v. Adkinson: A victim’s aunt called 911 after a sexual assault; the victim stated he couldn’t see the attacker’s face, contradicting his later testimony.

    Procedural History

    • People v. Vasquez: The trial court excluded the 911 call; the Appellate Division affirmed the conviction.
    • People v. Dalton: The trial court excluded the 911 call; the Appellate Division affirmed the conviction.
    • People v. Adkinson: The trial court excluded the 911 call; the Appellate Division affirmed the conviction.
    • Each case was appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the 911 call in People v. Vasquez was admissible as a present sense impression.
    2. Whether the 911 call in People v. Dalton was admissible as a present sense impression or an excited utterance.
    3. Whether the 911 call in People v. Adkinson was admissible as a present sense impression.

    Holding

    1. No, because the content of the 911 call was not sufficiently corroborated by independent evidence.
    2. No, because the statement was not contemporaneous with the event, nor was it made under the stress of excitement.
    3. No, because the statement was not contemporaneous with the event.

    Court’s Reasoning

    The Court of Appeals emphasized that the present sense impression exception requires both contemporaneity and corroboration. Contemporaneity means the statement must be made during or immediately after the event, leaving no time for reflection. Corroboration requires independent evidence supporting the substance of the statement. In Vasquez, the 911 call lacked corroboration because the caller’s description of the fleeing man differed from the defense witness’s description of the shooter. In Dalton, the defendant’s call was made after the shooting and his retreat indoors, allowing time for reflection. The court noted, “Without satisfaction of this requirement, the essential assurance of reliability—the absence of time for reflection and the reduced likelihood of faulty recollection—is negated.” In Adkinson, the victim’s statement on the 911 call was not contemporaneous with the assault. The Court distinguished present sense impressions from excited utterances, noting that the former relies on contemporaneity and corroboration, while the latter depends on the declarant’s excited state. The Court stated, “‘Excited utterances’ are the product of the declarant’s exposure to a startling or upsetting event that is sufficiently powerful to render the observer’s normal reflective processes inoperative…’Present sense impression’ declarations, in contrast, are descriptions of events made by a person who is perceiving the event as it is unfolding.”

  • People v. Vasquez, 70 N.Y.2d 951 (1988): Admissibility of Hearsay Statements Under the Excited Utterance Exception

    People v. Vasquez, 70 N.Y.2d 951 (1988)

    For a hearsay statement to qualify as an excited utterance, the proponent must demonstrate that the declarant’s statement was made under the stress of excitement caused by a startling event, effectively stilling the declarant’s reflective powers.

    Summary

    The Court of Appeals affirmed the Appellate Division’s order, holding that the prosecution failed to demonstrate that the hearsay statements in question qualified as excited utterances. The statements, made by the stabbing victim some time after the event and continuing through his hospitalization, were not shown to have been made under the influence of the stabbing. The Court found that the declarant’s level of responsiveness, activity, and condition suggested the remarks were not made under the impetus of the event but rather could have resulted from studied reflection. Therefore, the statements were inadmissible hearsay.

    Facts

    The declarant was stabbed. After the stabbing, the declarant made several statements, beginning some time after the event and continuing through Ms hospitalization. The prosecution sought to introduce these statements as evidence. The defense objected, arguing the statements were inadmissible hearsay. The prosecution argued that the statements fell under the excited utterance exception to the hearsay rule.

    Procedural History

    The trial court admitted the statements. The defendant was convicted. The Appellate Division reversed, finding the statements should not have been admitted. The People appealed to the Court of Appeals.

    Issue(s)

    Whether the prosecution met its burden of establishing that the declarant’s hearsay statements fell within the excited utterance exception to the hearsay rule, by showing that the statements were made under the influence of the startling event and stilled the declarant’s reflective powers.

    Holding

    No, because the prosecution failed to demonstrate that the declarant’s statements were made under the influence of the event and stilled his reflective powers. The declarant’s level of responsiveness, activity and condition suggested the remarks were not made under the impetus of the event but rather could have resulted from studied reflection.

    Court’s Reasoning

    The Court of Appeals held that the prosecution failed to establish that the hearsay statements fell within the excited utterance exception. The Court emphasized that for a statement to qualify as an excited utterance, it must be made under the immediate and uncontrolled domination of the senses, and during the brief period when consideration of self-interest could not have been brought fully to bear by reasoned reflection. The Court cited prior precedent: “From declarant’s level of responsiveness, Ms activity and his condition, it could not reasonably be concluded ‘that the remarks were not made under the impetus of studied reflection.’” (People v Edwards, 47 NY2d 493, 497). The Court determined that the circumstances surrounding the statements did not preclude the possibility of studied reflection, and therefore the statements were inadmissible. The Court declined to address other arguments raised by the Appellate Division concerning the specific standards applied to police questioning and the relevance of a later recantation by the declarant, as the primary issue of whether the statements qualified as excited utterances was dispositive. The court explicitly stated that whether the exception applies requires factual determinations that are made by the trial court, but whether a given set of facts takes a declarant’s statement outside the exception is a question of law that the Court of Appeals may review. (People v. Brown, 70 NY2d 513, 520)

  • People v. Vasquez, 70 N.Y.2d 84 (1987): Attorney-Client Privilege and Third-Party Presence

    People v. Vasquez, 70 N.Y.2d 84 (1987)

    The attorney-client privilege does not apply when communications are made in the presence of a third party, particularly a codefendant with potentially adverse interests, unless a common defense is being mounted, and the client has a reasonable expectation of confidentiality under the circumstances.

    Summary

    Vasquez was convicted of criminal possession of a weapon based on the statutory presumption of possession arising from his presence in a car where a gun was found. He argued that he should have been allowed to present evidence of a conversation between his codefendant Pena and Pena’s attorney, which Vasquez translated, to rebut the presumption. The trial court excluded the evidence based on attorney-client privilege. The New York Court of Appeals reversed, holding that Pena had no reasonable expectation of confidentiality because Vasquez, a codefendant with potentially adverse interests, was present, and there was no common defense being mounted. Therefore, the exclusion of the evidence was prejudicial error.

    Facts

    Vasquez and two codefendants, Pena and Mejia, were accused of robbing stereo equipment. The theft occurred when the Ridleys offered to sell equipment to the defendants, who were in a parked car. An argument arose, and Pena drove off with the equipment. The Ridleys pursued them to a gas station. John Ridley approached the car, and Pena allegedly pressed a gun to his ribs. There was conflicting testimony about whether Vasquez also got out of the car with the gun. Police apprehended the three defendants; Pena was driving, Mejia in the front passenger seat, and Vasquez in the back. The stereo equipment was in the front, and a handgun was found under papers on the floor of the rear seat.

    Procedural History

    Vasquez, Pena, and Mejia were charged with robbery and criminal possession of a weapon. Mejia’s charges were dismissed during trial. The jury found Pena guilty of robbery, petit larceny, and criminal possession of a weapon. Vasquez was convicted only of criminal possession of a weapon, third degree, and acquitted of the other charges. Vasquez appealed, arguing the trial court erred in preventing him from presenting evidence to rebut the statutory presumption of possession based on attorney-client privilege. The Appellate Division affirmed the judgment, but the Court of Appeals reversed.

    Issue(s)

    1. Whether the attorney-client privilege protects statements made by a client to their attorney in the presence of a codefendant who is acting as an interpreter.

    Holding

    1. No, because Pena had no reasonable expectation of confidentiality in the presence of Vasquez, a codefendant with potentially adverse interests, given that they were not mounting a common defense.

    Court’s Reasoning

    The Court of Appeals stated that the attorney-client privilege protects confidential communications between a client and their attorney for the purpose of obtaining legal advice. However, communications made in the presence of a third party are generally not privileged, unless an exception applies. One exception is for statements made to the attorney’s employees or agents. The scope of the privilege depends on whether the client had a reasonable expectation of confidentiality under the circumstances. The Court noted that a defendant does not generally enjoy a confidential privilege when communicating with counsel in the presence of another codefendant unless they are mounting a common defense. In this case, the court found that Vasquez was merely providing an accommodation as an interpreter, and the codefendants’ interests were potentially adverse. Thus, Pena had no reasonable expectation of confidentiality. The court stated, “It was Pena’s responsibility to establish facts sufficient to support the privilege and he failed to do so.” The court also found that the exclusion of this evidence was not harmless error because the jury’s verdict likely rested on the statutory presumption of possession, which Vasquez was entitled to rebut. The excluded testimony may have created enough doubt to rebut the presumption. The court emphasized, “Manifestly, the jury rejected the People’s claim, based on Ridley’s testimony, that defendant actually possessed the weapon because it acquitted him of the counts charging robbery, larceny and criminal possession, second degree. His conviction of simple possession must have rested on the presumption therefore and defendant Vas entitled to rebut it by introducing evidence tending to prove that Pena possessed the gun.”

  • People v. Vasquez, 70 N.Y.2d 1 (1987): Attorney’s Duty When a Client Insists on Raising Meritless Arguments on Appeal

    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.