Opinion
2018–06944 S.C.I. No. 339/16
11-03-2021
The PEOPLE, etc., respondent, v. Oscar MORALES, appellant.
Thomas A. Kenniff, Mineola, NY, for appellant. Joyce A. Smith, Acting District Attorney, Mineola, N.Y. (Jared A. Chester and Matthew C. Frankel of counsel), for respondent.
Thomas A. Kenniff, Mineola, NY, for appellant.
Joyce A. Smith, Acting District Attorney, Mineola, N.Y. (Jared A. Chester and Matthew C. Frankel of counsel), for respondent.
REINALDO E. RIVERA, J.P., VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, WILLIAM G. FORD, JJ.
DECISION & ORDER ON MOTION
Appeal by the defendant from an amended judgment of the Supreme Court, Nassau County (Terence P. Murphy, J.), rendered November 8, 2017, revoking a sentence of probation previously imposed by the same court, upon a finding that he violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous convictions of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), aggravated unlicensed operation of a motor vehicle in the first degree, and operating a motor vehicle without an ignition interlock device. 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 Thomas A. Kenniff 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 Stephen Mahler, 125–10 Queens Blvd., Suite 311, Kew Gardens, NY, 11415, is assigned as counsel to perfect 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 August 9, 2018, as amended April 15, 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 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]).
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 there are nonfrivolous issues in this case, including, but not necessarily limited to, whether the defendant's admission to violations of conditions of probation was involuntary because the Supreme Court was required, but failed, to advise him of the immigration consequences, if any, of his admission (see People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 ).
Accordingly, we must assign new counsel to represent the appellant (see People v. Stokes, 95 N.Y.2d 633, 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 931 N.Y.S.2d 676 ).
RIVERA, J.P., BRATHWAITE NELSON, IANNACCI and FORD, JJ., concur.