Opinion
2018–12559
12-04-2019
The PEOPLE, etc., Respondent, v. Marcus LONG, Appellant. (S.C.I. No. 18-00397)
Judith E. Permutt, Mount Vernon, N.Y., for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco of counsel), for respondent.
Judith E. Permutt, Mount Vernon, N.Y., for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ON MOTION Appeal by the defendant from a judgment of the County Court, Westchester County (Michael A. Martinelli, J.), rendered September 6, 2018, convicting him of robbery 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 she moves for leave to withdraw as counsel for the appellant.
ORDERED that the motion of Judith E. Permutt for leave to withdraw as counsel is granted, and she is directed to turn over all papers in her possession to the appellant's new counsel assigned herein; and it is further,
ORDERED that Thomas R. Villecco, 366 North Broadway, Suite 410, Jericho, N.Y. 11753, 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 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 31, 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 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] ).
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, should be accompanied by a brief " ‘reciting the underlying facts and highlighting anything in the record that might arguably support the appeal’ " ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676, quoting People v. Saunders, 52 A.D.2d 833, 833, 384 N.Y.S.2d 161 ; see People v. Nikac, 175 A.D.3d 1323, 1324, 109 N.Y.S.3d 308 ). "[C]ounsel must, at a minimum, draw the Court's attention to the 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" ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ; see People v. Nikac, 175 A.D.3d at 1324, 109 N.Y.S.3d 308 ; People v. Cummings, 173 A.D.3d 760, 761, 102 N.Y.S.3d 113 ).
Here, the brief submitted by the appellant's counsel pursuant to Anders v. California is deficient because it fails to analyze potential appellate issues with reference to relevant legal authority or highlight facts in the record that might arguably support the appeal (see People v. Nikac, 175 A.D.3d at 1324, 109 N.Y.S.3d 308 ; People v. Cummings, 173 A.D.3d at 761–762, 102 N.Y.S.3d 113 ; People v. Randolph, 156 A.D.3d 818, 819, 65 N.Y.S.3d 726 ). Since the brief does not demonstrate that assigned counsel fulfilled her obligations under Anders v. California, we must assign new counsel to represent the appellant (see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 ; People v. Sedita, 113 A.D.3d 638, 640, 978 N.Y.S.2d 318 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ).
DILLON, J.P., AUSTIN, ROMAN and CHRISTOPHER, JJ., concur.