Opinion
2018–00522 Ind.No. 17–00256
09-02-2020
The PEOPLE, etc., respondent, v. Fabian J. CORLEY, appellant.
Richard L. Herzfeld, New York, NY, for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel), for respondent.
Richard L. Herzfeld, New York, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER ON MOTION Appeal by the defendant from a judgment of the County Court, Orange County ( Craig Stephen Brown, J.), rendered November 2, 2017, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second 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 Richard L. Herzfeld for leave to 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 Mary Z. Raleigh, 27 Crystal Farm Road, Warwick, N.Y. 10990, 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 14, 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, 18 L.Ed.2d 493 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 fails to provide the relevant colloquy/facts concerning the defendant's purported waiver of his right to appeal with citation to legal authority (see People v. Swenson, 130 A.D.3d 848, 849, 12 N.Y.S.3d 557 ; People v. Johnson, 126 A.D.3d 916, 917, 2 N.Y.S.3d 919 ). Further, the brief fails to analyze whether the defendant has a nonfrivolous claim that the sentence imposed was excessive (see People v. Smith, 32 A.D.3d 553, 554–555, 820 N.Y.S.2d 162 ). 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. Dubose, 184 A.D.3d 584, 123 N.Y.S.3d 530 ; People v. Paulin, 181 A.D.3d 824, 118 N.Y.S.3d 415 ), and whether the sentence imposed was excessive (see generally People v. Delgado, 80 N.Y.2d 780, 587 N.Y.S.2d 271, 599 N.E.2d 675 ; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., CHAMBERS, COHEN and HINDS–RADIX, JJ., concur.