Opinion
2019–08357, 2020–07201, (Ind. No. 18-00167, S.C.I. No. 19-00301)
01-19-2022
The PEOPLE, etc., respondent, v. Winston GORDON, appellant.
Randall Richards, Bronxville, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent.
Randall Richards, Bronxville, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, SHERI S. ROMAN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER ON MOTION Appeal by the defendant from two judgments of the Supreme Court, Westchester County (Barry E. Warhit, J.), both rendered May 23, 2019, convicting him of attempted criminal possession of a weapon in the second degree under Indictment No. 18–00167, and criminal possession of marihuana in the third degree under S.C.I. No. 19–00301, upon his pleas of guilty, and imposing sentences. Assigned counsel 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 Randall Richards for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,
ORDERED that Loren Glassman, 185 Delhi Road, Scarsdale, New York 10583, is assigned as counsel to prosecute the appeals; 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 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 December 13, 2019, as amended by decision and order on motion of this Court dated September 25, 2020, the appellant was granted leave to prosecute the appeals as a poor person, with the appeals to be heard on the original papers (including a certified transcript of the proceedings) and on the briefs of the parties. The parties are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other (see 22 NYCRR 670.9 [a]). In reviewing an attorney's motion to be relieved pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, this Court must first " ‘satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal’ " ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 255, 931 N.Y.S.2d 676 [emphasis omitted], quoting Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 ; see People v. Murray, 169 A.D.3d 227, 93 N.Y.S.3d 694 ). "[C]ounsel must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority" ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ; see People v. Murray, 169 A.D.3d at 231–232, 93 N.Y.S.3d 694 ; People v. Randolph, 156 A.D.3d 818, 819, 65 N.Y.S.3d 726 ). "Counsel cannot merely recite the underlying facts, and state a bare conclusion that, after reviewing the record and discussing the case with the client, it is the writer's opinion that there are no nonfrivolous issues to be raised on appeal" ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ). If assigned counsel's Anders brief is deficient in this respect, "new counsel must be assigned to perform a new appellate review" ( People v. Murray, 169 A.D.3d at 232, 93 N.Y.S.3d 694 ).
Here, the brief submitted by the appellant's assigned counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 is deficient because it fails to analyze potential legal issues with reference to the facts of the case and relevant legal authority (see People v. Holley, 193 A.D.3d 878, 142 N.Y.S.3d 376 ; People v. Regalado, 192 A.D.3d 918, 140 N.Y.S.3d 785 ; People v. Adams, 192 A.D.3d 821, 139 N.Y.S.3d 865 ; People v. Persaud, 187 A.D.3d 1060, 1062, 131 N.Y.S.3d 187 ; People v. Santos, 180 A.D.3d 941, 115 N.Y.S.3d 907 ; People v. Sedita, 113 A.D.3d 638, 640, 978 N.Y.S.2d 318 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 ). After reciting the facts relating to the appellant's plea and sentence, the brief merely states in conclusory fashion that no nonfrivolous issues exist (see People v. Santos, 180 A.D.3d 941, 115 N.Y.S.3d 907 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 ). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the appellant (see People v. Santos, 180 A.D.3d 941, 115 N.Y.S.3d 907 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 ).
CONNOLLY, J.P., HINDS–RADIX, ROMAN and DOWLING, JJ., concur.