Opinion
2019-11273 Ind. No. 114/19
10-18-2023
The PEOPLE, etc., respondent, v. Devon TRENT, appellant.
Joseph A. Hanshe, Sayville, NY, for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Thomas C. Costello of counsel), for respondent.
Joseph A. Hanshe, Sayville, NY, for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Thomas C. Costello of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, BARRY E. WARHIT, LAURENCE L. LOVE, JJ.
DECISION & ORDER ON MOTION Appeal by the defendant from a judgment of the County Court, Suffolk County (William J. Condon, J.), rendered September 5, 2019, convicting him of criminal possession of a weapon in the third 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 Joseph A. Hanshe for leave to withdraw as counsel for the appellant 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 Sabato Caponi, 80 Orville Drive, Ste. 100, Bohemia, New York 11716, 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 February 7, 2020, 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]).
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 [emphasis omitted]). "The filing of a sufficient Anders brief is essential to ensuring that an indigent party's rights are protected" ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 ). "[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal" ( id. at 258, 931 N.Y.S.2d 676 ; see People v. Singh, 210 A.D.3d 1017, 1018, 178 N.Y.S.3d 759 ).
Here, the brief submitted by assigned counsel pursuant to Anders v. California is deficient because it fails to analyze potential legal issues with reference to the facts of the case and relevant legal authority. The analysis of the case at hand does little more than conclusorily assert the opinion of assigned counsel that there are no nonfrivolous issues to raise on appeal. "A mere mechanical statement that there are no valid issues that could legitimately be raised on an appeal is insufficient" ( People v. Lowery, 86 A.D.2d 537, 538, 445 N.Y.S.2d 992 ). 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 People v. Chicas, 203 A.D.3d 1064, 1066, 162 N.Y.S.3d 783 ; People v. Giglio, 202 A.D.3d 820, 821, 158 N.Y.S.3d 852 ).
DILLON, J.P., MILLER, WARHIT and LOVE, JJ., concur.