Opinion
2018–13778 Ind. No. 929/17
08-19-2020
The PEOPLE, etc., Respondent, v. Joe RODRIGUEZ, Appellant.
Bruce R. Bekritsky, Mineola, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Matthew C. Frankel of counsel), for respondent.
Bruce R. Bekritsky, Mineola, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Matthew C. Frankel of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER ON MOTION Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert A. Schwartz, J.), rendered September 8, 2017, convicting him of criminal possession of a controlled substance in the second degree and criminal possession of a firearm, 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 Bruce R. Bekritsky for leave to withdraw as counsel 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 Andrew E. MacAskill, 734 Franklin Avenue, # 734, Garden City, N.Y. 11530, 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 April 30, 2019, 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 file one original and five duplicate hard copies, and one digital copy, of their respective briefs, and to serve one hard copy on each other (see 22 NYCRR 1250.9 [a][4]; [c][1] ).
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, quoting Penson v. Ohio , 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 ). "[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 255, 931 N.Y.S.2d 676 ).
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. It does not address, inter alia, the colloquy regarding the defendant's purported waiver of his right to appeal, or address whether the sentence imposed was excessive (see People v. McCalla , 160 A.D.3d 662, 663, 74 N.Y.S.3d 307 ; People v. Ferretti , 148 A.D.3d 720, 721, 47 N.Y.S.3d 736 ; People v. Swenson , 130 A.D.3d 848, 849, 12 N.Y.S.3d 557 ; People v. Sedita , 113 A.D.3d 638, 639–640, 978 N.Y.S.2d 318 ; cf. People v. Murray , 169 A.D.3d 227, 93 N.Y.S.3d 694 ). Since the defendant did not receive the minimum sentence authorized by statute (see Penal Law 70.71[3][b][ii] ), counsel's failure to identify and analyze the appellate waiver and the sentence was consequential (cf. People v. Murray , 169 A.D.3d at 234–235, 93 N.Y.S.3d 694 ). After reciting the facts related to the defendant's plea and sentence, the brief states in a conclusory fashion that no nonfrivolous issues exist (see Matter of Giovanni S. [Jasmin A.] , 89 A.D.3d at 258, 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. Rivera , 142 A.D.3d 512, 513, 35 N.Y.S.3d 722 ; People v. Parker, 135 A.D.3d 966, 968, 23 N.Y.S.3d 393 ; Matter of Giovanni S. [Jasmin A.] , 89 A.D.3d at 258, 931 N.Y.S.2d 676 ).
DILLON, J.P., ROMAN, DUFFY and BARROS, JJ., concur.