Opinion
2019-13193 Ind. 952/18
04-13-2022
The People of the State of New York, respondent, v. Noel Smith, appellant.
Pat Bonanno, White Plains, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio of counsel), for respondent.
Pat Bonanno, White Plains, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P. REINALDO E. RIVERA, ROBERT J. MILLER, PAUL WOOTEN, JJ.
DECISION & ORDER ON MOTION
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered September 12, 2019, convicting him of driving while intoxicated and aggravated unlicensed operation of a motor vehicle, 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 assigned counsel moves for leave to withdraw as counsel for the appellant.
ORDERED that the motion of Pat Bonanno for leave to withdraw as counsel for the appellant is granted, and former counsel is directed to turn over all papers in former counsel's possession to new counsel assigned herein; and it is further, ORDERED that Steven A. Feldman, 1129 Northern Boulevard, Suite 404, Manhasset, NY 11030, is assigned as new 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 February 4, 2020, 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, 231-232). "Step one 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 231-232, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 258).
"If the Anders brief is deficient and fails to withstand step one review, new counsel must be assigned to perform a new appellate review" (People v Murray, 169 A.D.3d at 232; see e.g. People v McNair, 110 A.D.3d 742; People v Singleton, 101 A.D.3d 909). As the Court of Appeals has repeatedly cautioned, "neither a review of the record by the Appellate Division nor a pro se brief can substitute for the single-minded advocacy of appellate counsel" (People v Casiano, 67 N.Y.2d 906, 907; see People v Gonzalez, 47 N.Y.2d 606, 611-612; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258; People v Reyes, 302 A.D.2d 322; People v Espino, 279 A.D.2d 798, 801).
Here, the brief submitted by the defendant's counsel pursuant to Anders v California (386 U.S. 738) included a statement of the facts with citations to pages in the transcripts of the plea proceeding and the sentencing proceeding. Assigned counsel's brief also analyzed the enforceability of the purported appeal waiver, and the validity of the defendant's plea of guilty. However, although assigned counsel set forth an analysis of whether the defendant's plea was knowing, intelligent, and voluntary, there is no indication in the record or brief that assigned counsel actually communicated with the defendant at any point during the representation to see whether the defendant actually wanted to withdraw his plea of guilty (cf. People v Somarriba, 116 A.D.2d 525). This is significant because a defendant's decision to plead guilty is personal, and assigned counsel may not properly seek to vacate a defendant's plea of guilty without the defendant's express consent (see e.g. People v Rolston, 66 A.D.2d 617, 628, affd 50 N.Y.2d 1048).
As this Court has recognized "'[e]very advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court'" (Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, quoting McCoy v Court of Appeals of Wis. Dist. 1, 486 U.S. 429, 438). "In the fulfillment of that responsibility, counsel should promptly obtain any transcripts, and consult with the client, as well as with trial counsel" (Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256 [emphasis added]). Inasmuch as assigned counsel's brief does not reflect that assigned counsel actually consulted with the defendant at any point during the representation, the brief does not demonstrate that assigned counsel fulfilled the obligation imposed by Anders to "consult with the client" (id. at 256; cf. People v Somarriba, 116 A.D.2d 525). Moreover, there is nothing in the record or in assigned counsel's brief indicating that assigned counsel sent a letter to the defendant or otherwise informed him of his right to file a pro se supplemental brief in addition to assigned counsel's Anders brief (see People v Orve, 178 A.D.2d 564, 564-565).
Furthermore, as the People correctly note, assigned counsel failed to adequately address the defendant's sentence. Assigned counsel's brief failed to adequately address this Court's "broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be [legal]" (People v Delgado, 80 N.Y.2d 780, 783; see CPL 470.20[6]; People v Gonzalez, 47 N.Y.2d at 611-612; People v Jones, _____ A.D.3d _____, 2022 NY Slip Op 00879 [2d Dept]; People v London, 198 A.D.3d 920, 922; People v Gates, 198 A.D.3d 917, 918; People v Williams, 188 A.D.3d 934, 935; People v Espinoza, 186 A.D.3d 1242, 1243; see also People v Cummings, 173 A.D.3d 760, 762).
In sum, since assigned counsel's brief does not demonstrate that assigned counsel fulfilled the obligations imposed by Anders, we must assign new counsel to represent the appellant (see People v Areizaga, 198 A.D.3d 981, 982; People v Rojas, 188 A.D.3d 726, 727; People v McNair, 110 A.D.3d at 743; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258).
CONNOLLY, J.P., RIVERA, MILLER and WOOTEN, JJ., concur.