Opinion
2015-07-15
The PEOPLE, etc., respondent, v. Calvin McKANE, appellant.
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered January 30, 2014, convicting him of attempted robbery 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 she moves for leave to withdraw as counsel for the appellant.
ORDERED that the motion of Yasmin Daley Duncan for leave to withdraw as counsel for the appellant is granted, and she is directed to turn over all papers in her possession to the appellant's new counsel assigned herein; and it is further,
ORDERED that Salvatore C. Adamo, 350 Fifth Avenue, 59th Floor, New York, N.Y. 10118 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 this decision and order, and the People shall serve and file their brief within 120 days of this decision and order. By prior decision and order on motion of this Court dated May 2, 2014, 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.
Upon this Court's independent review of the record, we conclude that there are nonfrivolous issues in this case, including, but not necessarily limited to, whether the sentence imposed was legal ( seePenal Law § 70.45[2][e] ) and whether it was excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). Accordingly, assignment of new counsel is warranted ( see People v. Stokes, 95 N.Y.2d 633, 638, 722 N.Y.S.2d 217, 744 N.E.2d 1153; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 254–261, 931 N.Y.S.2d 676).