Opinion
No. 2020-993 P CR
05-24-2022
The People of the State of New York, Respondent, v. Dulvin Efrain Andres Oballe, Appellant.
John P. Savoca, for appellant. Putnam County District Attorney, for respondent (no brief filed).
Unpublished Opinion
John P. Savoca, for appellant.
Putnam County District Attorney, for respondent (no brief filed).
PRESENT:: JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, BARRY E. WARHIT, JJ.
Appeal from a judgment of the Justice Court of the Village of Brewster, Putnam County (Richard L. O'Rourke, J.), rendered November 18, 2019. The judgment convicted defendant, upon his plea of guilty, of endangering the welfare of a child. Assigned counsel has submitted a brief in accordance with Anders v California (386 U.S. 738 [1967]), seeking leave to withdraw as counsel.
ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted and new counsel is assigned pursuant to article 18-B of the County Law to prosecute the appeal;
Steven A. Feldman, Esq.
Feldman and Feldman
1129 Northern Boulevard
Suite 404
Manhasset, NY 10303.
Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel. New counsel is directed to serve and file a brief within 90 days after the date of this order and decision. The People may serve and file a respondent's brief within 21 days after the service upon them of the appellant's brief. Appellant's new counsel, if so advised, may serve and file a reply brief within seven days after service of the respondent's brief.
Assigned counsel submitted an Anders brief setting forth the conclusion that there exist no nonfrivolous issues that could be raised on appeal (see Anders v California, 386 U.S. 738 [1967]). A review of the record, however, reveals the existence of possible nonfrivolous issues, including (1) whether the waiver of appellate rights, signed by defendant, was rendered a nullity because it is written in Spanish without an English translation (see CPLR 2101 [b]; 22 NYCRR 200.3); (2) whether, during the plea allocution, defendant was given a sufficient explanation of the Boykin rights he would be waiving as a result of pleading guilty (see Boykin v Alabama, 395 U.S. 238 [1969]; People v Tyrell, 22 N.Y.3d 359 [2013]) and of those unwaivable appellate rights he would nonetheless retain; (3) whether defendant was given a sufficient warning about potential negative immigration consequences that could arise as a result of pleading guilty (see People v Peque, 22 N.Y.3d 168 [2013]); and (4) whether defense counsel was ineffective for failing to move to dismiss the misdemeanor accusatory instrument due to the absence of a supporting deposition of the complainant.
Accordingly, we grant assigned counsel's motion to withdraw as counsel, and, in light of the risk inherent in the issues, given that defendant was originally charged with two felonies (see CPL 470.55 [2]), we assign new counsel, pursuant to article 18-B of the County Law, to ascertain whether defendant desires to raise the issues set forth above, or any others, and to prosecute the appeal on defendant's behalf with respect to these issues or any other issue that can be identified.
GARGUILO, P.J., EMERSON and WARHIT, JJ., concur.