Opinion
2021–03855 Ind. No. 1079/19
10-19-2022
The PEOPLE, etc., respondent, v. Kenneth GRAFTON, appellant.
Stephen R. Mahler, Kew Gardens, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Cristin N. Connell and Autumn S. Hughes of counsel), for respondent.
Stephen R. Mahler, Kew Gardens, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Cristin N. Connell and Autumn S. Hughes of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, LILLIAN WAN, JJ.
DECISION & ORDER ON MOTION Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Teresa K. Corrigan, J.), rendered May 3, 2021, convicting him of criminal possession of a controlled substance in the third degree and assault in the second degree, upon his plea of guilty, and imposing sentence. 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 Stephen R. Mahler 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 Mark Diamond, Box 388 Pound Ridge, Pound Ridge, N.Y. 10576–9919, is assigned as new 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 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 September 10, 2021, 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. 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]).
The brief submitted by the defendant's 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 adequately analyze potential appellate issues with reference to facts that might arguably support the appeal (see People v. London , 198 A.D.3d 920, 921–922, 152 N.Y.S.3d 845 ; People v. Rojas , 188 A.D.3d 726, 727, 131 N.Y.S.3d 614 ; People v. Espinoza , 186 A.D.3d 1242, 1243, 127 N.Y.S.3d 898 ; People v. Morales , 180 A.D.3d 934, 934–935, 116 N.Y.S.3d 573 ). Moreover, it is apparent from the assigned counsel's brief and an attached letter that counsel has "not complied with the technical requirement of informing the defendant that he may seek leave to file a pro se brief" ( People v. Orve , 178 A.D.2d 564, 564–565, 577 N.Y.S.2d 871 ; see 22 NYCRR 1250.11 [f][1][ii]; People v. Smith , 204 A.D.3d 838, 840, 166 N.Y.S.3d 268 ).
Further, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the defendant's plea of guilty was entered knowingly, intelligently, and voluntarily (see People v. Robinson, 175 A.D.3d 719, 721, 108 N.Y.S.3d 20 ; People v. Dimon, 164 A.D.3d 600, 601, 78 N.Y.S.3d 683 ). Accordingly, under the circumstances, we must assign new counsel to represent the defendant.
CONNOLLY, J.P., CHRISTOPHER, WOOTEN and WAN, JJ., concur.