Opinion
2015-03-18
The PEOPLE, etc., respondent, v. Milton W. CARLOS, appellant.
Gary E. Eisenberg, New City, N.Y., for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for respondent.
Gary E. Eisenberg, New City, N.Y., for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered April 3, 2012, convicting him of criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence. Assignedcounsel has submitted a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, in which he moves for leave to withdraw as counsel for the appellant.
ORDERED that the motion of Gary E. Eisenberg for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to the appellant's new counsel assigned herein; and it is further,
ORDERED that John P. Savoca, Esq., P.O. Box 531, Yorktown Heights, N.Y. 10598, is assigned as counsel to prosecute the appeal; and it is further,
ORDERED that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the appellant's new assigned counsel; and it is further,
ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated January 31, 2013, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.
The brief submitted by the appellant's counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, was deficient because it failed to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal ( see People v. McNair, 110 A.D.3d 742, 971 N.Y.S.2d 889; People v. Singleton, 101 A.D.3d 909, 910, 954 N.Y.S.2d 910; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676). Assigned counsel failed to draw the Court's attention to any “significant objections, applications, or motions” regarding the hearing on the defendant's pretrial suppression motion (Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676). Since the brief did not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the appellant ( see People v. McNair, 110 A.D.3d at 743, 971 N.Y.S.2d 889; People v. Singleton, 101 A.D.3d at 910, 954 N.Y.S.2d 910; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676).
Moreover, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the purported waiver of the defendant's right to appeal was valid ( see generally People v. Brown, 122 A.D.3d 133, 144–145, 992 N.Y.S.2d 297; People v. Nugent, 109 A.D.3d 625, 970 N.Y.S.2d 634; People v. Edmunson, 109 A.D.3d 621, 970 N.Y.S.2d 635; People v. Gil, 109 A.D.3d 484, 970 N.Y.S.2d 88), and whether the County Court properly denied the defendant's pretrial suppression motion ( see People v. Frazier, 124 A.D.3d 909, 998 N.Y.S.2d 902; People v. Taylor, 92 A.D.3d 961, 961–962, 940 N.Y.S.2d 103; People v. Elpenord, 24 A.D.3d 465, 467, 806 N.Y.S.2d 675). DILLON, J.P., CHAMBERS, AUSTIN and LaSALLE, JJ., concur.