Opinion
No. 2022-933 S CR
05-16-2024
The People of the State of New York, Respondent, v. Desean L. Bailey, Appellant.
Richard L. Herzfeld, for appellant. Suffolk County District Attorney (Thomas C. Costello of counsel), for respondent.
Unpublished Opinion
Richard L. Herzfeld, for appellant.
Suffolk County District Attorney (Thomas C. Costello of counsel), for respondent.
PRESENT: JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, JAMES P. McCORMACK, JJ
Appeal from a judgment of the District Court of Suffolk County, First District (John James Andrews, J.), rendered September 21, 2022. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree, and imposed sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 U.S. 738 [1967]), seeking leave to withdraw as counsel.
ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted, and new counsel is assigned pursuant to article 18-B of the County Law to prosecute the appeal;
Mark Diamond, Esq.
P.O. Box 388
Pound Ridge, NY 10576
Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel. New counsel is directed to serve and file a brief within 90 days after the date of this order and decision. The People may serve and file a respondent's brief within 21 days after the service upon them of the appellant's brief. Appellant's new counsel, if so advised, may serve and file a reply brief within seven days after service of the respondent's brief.
Assigned counsel submitted an Anders brief setting forth the conclusion that there exist no nonfrivolous issues that could be raised on appeal (see Anders v California, 386 U.S. 738 [1967]). However, the brief is deficient because it fails to adequately analyze potential appellate issues or highlight facts in the record that might arguably support an appeal (see People v Murray, 169 A.D.3d 227 [2019]; People v Dimon, 164 A.D.3d 600 [2018]; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256 [2011]).
Moreover, upon our independent review of the record, we have determined that nonfrivolous issues exist in this case, including whether the felony complaint was properly reduced to a misdemeanor instrument (see CPL 180.50 [3]) and whether defendant was given a sufficient warning about potential negative immigration consequences, including deportation, that could arise as a result of pleading guilty (see People v Peque, 22 N.Y.3d 168 [2013]).
Accordingly, we hold the appeal in abeyance, grant assigned counsel's application for leave to withdraw as counsel and assign new counsel to ascertain whether defendant desires to raise the issues set forth above, or any other, and to prosecute the appeal on defendant's behalf with respect to this issue or any other issue that can be identified.
GARGUILO, P.J., DRISCOLL and McCORMACK, JJ., concur.