Opinion
2018-11213
01-12-2022
The People, etc., respondent, v. Destin Crosby, appellant. Ind. No. 16-00475
Valerie Livingston, White Plains, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent (no brief filed).
Submitted - December 13, 2021
D68240 Y/htr
Valerie Livingston, White Plains, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent (no brief filed).
CHERYL E. CHAMBERS, J.P. SHERI S. ROMAN LARA J. GENOVESI DEBORAH A. DOWLING, JJ.
DECISION & ORDER ON MOTION
Appeal by the defendant from a judgment of the County Court, Westchester County (Susan M. Capeci, J.), rendered July 18, 2018, convicting him of attempted criminal sale of a controlled substance 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), in which she moves for leave to withdraw as counsel for the appellant.
ORDERED that the motion of Valerie Livingston for leave to withdraw as counsel for the appellant is granted, and she is directed to turn over all papers in her possession to new counsel assigned herein; and it is further.
ORDERED that Samuel Coe, 50 Main St., Suite 1000, White Plains, NY 10606, 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 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 December 27, 2018, 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]).
An appellate court's role in reviewing an attorney's motion to be relieved pursuant to Anders v California (386 U.S. 738) consists of two separate and distinct steps (see People v Murray, 169 A.D.3d 227, 231). The first step is the court's evaluation of assigned counsel's brief, "which must, to be adequate, discuss 'relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority'" (id. at 232, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 258). The second step is to determine whether counsel's assessment that there are no nonfrivolous issues for appeal is correct (see People v Murray, 169 A.D.3d at 232; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258).
"In analyzing whether nonfrivolous appellate issues exist, it is essential to appreciate the distinction between a potential appellate argument that is merely meritless or unlikely to prevail and one that is frivolous" (Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258). If the court concludes that there are nonfrivolous issues that could be raised on appeal, the court must assign new counsel to pursue an appeal on the defendant's behalf (see id.).
While we are satisfied with the sufficiency of the brief filed by assigned counsel, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the defendant's waiver of his right to appeal was valid (see People v Bisono, 36 N.Y.3d 1013; People v Thomas, 34 N.Y.3d 545), and whether the defendant's sentence was excessive (see People v Suitte, 90 A.D.2d 80).
Accordingly, the assignment of new counsel is warranted.
CHAMBERS, J.P., ROMAN, GENOVESI and DOWLING, JJ., concur.