Opinion
2017–12187 Ind. No. 7015/16
08-28-2019
The PEOPLE, etc., Respondent, v. Everett ROBINSON, Appellant.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER ON MOTION ORDERED that the motion of Paul Skip Laisure 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 Randall D. Unger, 42–40 Bell Boulevard, Suite 302, Bayside, NY, 11361, 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 April 3, 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] ).
The defendant agreed to plead guilty to one count of attempted robbery in the first degree in exchange for a promised sentence. During the course of the plea proceeding, the Supreme Court threatened to hold the defendant in contempt of court after he questioned the validity of a certain surcharge that the court stated would be imposed as a consequence of his conviction. The court went on to provide the defendant with varied and equivocal explanations of the surcharge, indicating on multiple occasions that it was not mandatory and might not be assessed against the defendant. After receiving the court's explanations, the defendant decided to continue with the plea agreement, and his plea of guilty was ultimately accepted. When the defendant was subsequently sentenced, the court assessed the disputed surcharge against the defendant over his objection. On this appeal from the judgment of conviction, 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 defendant.
"When evaluating a record of criminal proceedings, assigned counsel is tasked with the responsibility of identifying and distinguishing between issues that are frivolous and issues that are arguable on the merits" ( People v. Murray, 169 A.D.3d 227, 231, 93 N.Y.S.3d 694 ). "Frivolous issues, once identified, should not be pursued on appeal" ( id. at 231, 93 N.Y.S.3d 694 ). "Appeals that present issues that may be arguable on their merits—even if weakly or marginally so—must be perfected to fulfill the defendant's right to receive, and the attorney's obligation to provide, zealous representation" ( id. ; see Penson v. Ohio, 488 U.S. 75, 81, 109 S.Ct. 346, 102 L.Ed.2d 300 ; Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396 ; People v. Stokes, 95 N.Y.2d 633, 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153 ; People v. Gonzalez, 47 N.Y.2d 606, 610, 419 N.Y.S.2d 913, 393 N.E.2d 987 ). As this Court has repeatedly emphasized, "the question is not whether the appeal presents any issues that have merit, but whether it presents any issues that are ‘arguable’ on the merits" ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 259–260, 931 N.Y.S.2d 676, quoting Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396 ).
An appellate court's role in reviewing 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 consists of two separate and distinct steps (see People v. Murray, 169 A.D.3d 227, 93 N.Y.S.3d 694 ). Step one requires the appellate court to perform "[an] 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, 93 N.Y.S.3d 694, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ). Step two requires the appellate court to perform "an ‘independent review of the record’ to determine whether ‘counsel's assessment that there are no nonfrivolous issues for appeal is correct’ " ( People v. Murray, 169 A.D.3d at 232, 93 N.Y.S.3d 694, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ).
Here, the brief submitted by the defendant's counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 was deficient because it failed to adequately analyze potential appellate issues, including, but not necessarily limited to, whether the defendant's plea of guilty was entered knowingly, intelligently, and voluntarily (see People v. Wilson, 161 A.D.3d 785, 786, 72 N.Y.S.3d 844 ; People v. Randolph, 156 A.D.3d 818, 819–820, 65 N.Y.S.3d 726 ; People v. Sedita, 113 A.D.3d 638, 640, 978 N.Y.S.2d 318 ). 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's plea of guilty was knowing, intelligent, and voluntary (see People v. Dimon, 164 A.D.3d 600, 601, 78 N.Y.S.3d 683 ; People v. Bird, 152 A.D.3d 785, 785–786, 59 N.Y.S.3d 431 ; People v. Gavarette, 130 A.D.3d 646, 647, 10 N.Y.S.3d 889 ; People v. Wolfolk, 128 A.D.3d 991, 992, 11 N.Y.S.3d 610 ). Accordingly, under the circumstances, we must assign new counsel to represent the defendant.
MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.