Opinion
2020–09064 Ind. No. 1440/19
10-20-2021
The PEOPLE, etc., respondent, v. LENNOX LONDON, appellant.
Stephen R. Mahler, Kew Gardens, NY, for appellant. Joyce A. Smith, Acting District Attorney, Mineola, N.Y. (Kevin C. King and Madeline Collins of counsel), for respondent.
Stephen R. Mahler, Kew Gardens, NY, for appellant.
Joyce A. Smith, Acting District Attorney, Mineola, N.Y. (Kevin C. King and Madeline Collins of counsel), for respondent.
REINALDO E. RIVERA, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER ON MOTION Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Terence P. Murphy, J.), rendered October 29, 2020, convicting him of criminal possession of a weapon 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 Alan Katz, 2417 Jericho Turnpike, Suite 164, Garden City Park, NY, 11040, is assigned as counsel to perfect 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 13, 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 appellant'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 contain an adequate statement of facts and fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v. Morales, 180 A.D.3d 934, 934–935, 116 N.Y.S.3d 573 ; People v. Velez, 176 A.D.3d 1239, 1240, 109 N.Y.S.3d 666 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676 ). The statement of facts does not review, in any detail, the Supreme Court's inquiries made of the appellant to ensure that the defendant's plea was knowingly and voluntarily entered, or the colloquy regarding the defendant's waiver of his right to appeal (see People v. Morales, 180 A.D.3d at 935, 116 N.Y.S.3d 573 ; People v. Polk, 161 A.D.3d 1012, 1013, 73 N.Y.S.3d 755 ). Moreover, the brief failed to analyze potential appellate issues, including, but not necessarily limited to, the validity of the appeal waiver with reference to the facts of the case and whether the defendant's sentence was excessive (see 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 ). 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. Velez, 176 A.D.3d at 1240, 109 N.Y.S.3d 666 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ).
RIVERA, J.P., CHRISTOPHER, WOOTEN and ZAYAS, JJ., concur.