Opinion
2018–12096 Ind.No. 17–00783
06-17-2020
The PEOPLE, etc., Respondent, v. Christopher SMITH, Appellant.
Thomas R. Villecco, Jericho, NY, for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (William C. Ghee of counsel), for respondent.
Thomas R. Villecco, Jericho, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (William C. Ghee of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JOHN M. LEVENTHAL, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ON MOTION
ORDERED that the motion of Thomas R. Villecco for leave withdraw as counsel 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 Warren S. Hecht, 118–21 Queens Blvd., Suite 518, Forest Hills, NY, 11375, 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 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 March 8, 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] ).
The brief submitted by the defendant's assigned counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 is deficient in that it fails to evaluate whether the plea was advantageous to the defendant in light of the potential availability of a justification defense, and whether the defendant may have a nonfrivolous claim of ineffective assistance of counsel. Moreover, the brief does not evaluate the written waiver of the right to appeal. Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the defendant (see Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 258, 931 N.Y.S.2d 676 ).
Moreover, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the defendant was deprived of the effective assistance of trial counsel, whether the purported waiver of the defendant's right to appeal is valid (see People v. Pelaez, 100 A.D.3d 803, 954 N.Y.S.2d 554 ), and whether the sentence imposed was excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
CHAMBERS, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur.