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#295 Third Department Caselaw Round-Up for February 2, 2012, Part 2 of 5

155 Post-1 02-02-12, Part 2 Third Department February.pngThe return of the dreaded Anders Briefs!

In the first case, we see a rarity: an Anders Brief in a family law appeal. These happen from time to time, but very seldom. When the need for one arises in the context of family law, it’s usually obvious.

In the second case, a criminal law appeal, another Anders Brief is submitted and granted by the court. However, at least with regard to criminal appeals, the submission of an Anders Brief is tantamount to playing Russian roulette: sooner or later, you’re going to guess wrong and the court is going to spank you for it. Better practice is to do your due diligence and find something (anything!) in the record on appeal to hang your hat on so as to avoid submitting an Anders Brief.

155 Post-2 Cortland County.pngCase #145 #511254
Matter of Kimberly C., ___ A.D.3d ___, ___ N.Y.S.2d ___ Cortland Family – Ames Issues: Anders Brief; Orders of Protection Cited statutes: FCA Art. 8 Dismissed

The three children of a father were granted an order temporarily extending an order of protection against their father. However, because the record reflected that further family court proceedings had rendered the appeal moot, an Anders Brief ensued and was granted by the Third Department.

My guess is that the underlying order being appealed was vacated by the family court (in those further proceedings), which had the effect of making any appeal moot.

And that’s the problem with Anders Briefs: you are left with nothing but guesswork as to what really happened in the case.

155 Post-3 Franklin County.pngCase #146 #103893
People v. Annette, ___ A.D.3d ___, ___ N.Y.S.2d ___ Franklin County – Main Issues: Anders Brief; Criminal Charges Cited statutes: None Affirmed

The defendant pled guilty to the crime of Rape in the Third Degree, as well as the crime of Attempted Criminal Possession of a Weapon in the Third Degree, in satisfaction of the charges of two indictments.

The defendant pled guilty with the understanding that he was going to receive two to four years in prison for each crime, but with the understanding that the court was not making any promise that the sentences would run concurrently or consecutively. The defendant took the deal and, lo and behold, the court directed that the sentences were to run consecutively. Surprise! The defendant, unsurprisingly, appealed.

Apparently, the only thing to appeal here was the defendant’s anger over his bad luck, and nothing more. Again, I’m only guessing here, but I imagine that the sentencing judge probably found something he did not like in the defendant’s pre-sentence investigation report, which predisposed the judge to favor consecutive sentences over concurrent ones.

In this particular set of circumstances, the Third Department agreed with appellate counsel that there were “no non-frivolous issues to be raised on appeal.”

Caselaw Round-Up Score Card:

Affirmed: 99 (67.81%)
Decision Withheld: 6 (4.11%)
Dismissed: 9 (6.16%)
Modified: 11 (7.53%)
Reversed: 20 (13.70%)

Total: 146