Opinion
2013-03-13
The PEOPLE, etc., respondent, v. Darrian L. BENNETT, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.
REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered October 13, 2010, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree, and criminal sale of marijuana in the fifth 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 Robert C. Mitchell 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 Mark Diamond, Esq., Box 287356, Yorkville Station, N.Y., 10128, 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, 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, the defendant 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.
The brief submitted by the appellant's assigned counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 is deficient because it fails to contain an adequate statement of facts and fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal ( see People v. Singleton, 101 A.D.3d 909, 910, 954 N.Y.S.2d 910;People v. Ovalle, 99 A.D.3d 1023, 1024, 952 N.Y.S.2d 466;Matter of Giovanni S. [ Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676). Inasmuch as the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his ... client” (Matter of Giovanni S. [ Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 [internal quotation marks omitted] ) or that he diligently examined the record, we must assign new counsel to represent the appellant ( see People v. Singleton, 101 A.D.3d at 910, 954 N.Y.S.2d 910;People v. Ovalle, 99 A.D.3d at 1024, 952 N.Y.S.2d 466;Matter of Giovanni S. [ Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676).