Opinion
2017–06126 (Docket Nos. V–6915–13, V–6916–13)
09-26-2018
In the Matter of Conrado LOPEZ, respondent, v. Kenia PRUDENCIO, appellant.
Jan Murphy, Huntington, NY, for appellant. Janice Peretzman, Garden City, NY, for respondent. Gail M. Berkowitz, Northport, NY, attorney for the children (no brief filed).
Jan Murphy, Huntington, NY, for appellant.
Janice Peretzman, Garden City, NY, for respondent.
Gail M. Berkowitz, Northport, NY, attorney for the children (no brief filed).
ALAN D. SCHEINKMAN, P.J. JEFFREY A. COHEN COLLEEN D. DUFFY FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ON MOTION
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Robert LoPresti, Ct. Atty. Ref.), dated April 21, 2017. The order, insofar as appealed from, after a hearing, granted the father's petition for sole custody of the parties' children. 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 Jan Murphy for leave to withdraw as counsel for the appellant 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 Kristina Heuser, P.O. Box 672, Locust Valley, NY, 11560, is assigned as counsel to prosecute the appeal; 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 and the attorney for the children shall serve and file their briefs within 30 days after the brief on behalf of the appellant is served and filed. By order on certification of this Court dated July 10, 2017, 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, who were directed to file nine copies of their respective briefs and to serve one copy on each other.
The brief submitted by the appellant's assigned counsel pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 was deficient and fails to demonstrate that assigned counsel acted as an advocate on behalf of her client (see People v. Abdul, 102 A.D.3d 976, 976, 958 N.Y.S.2d 605 ; People v. Poznanski, 97 A.D.3d 701, 702, 948 N.Y.S.2d 359 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676 ). Accordingly, we must assign new counsel to represent the appellant (see People v. Abdul, 102 A.D.3d at 976, 958 N.Y.S.2d 605 ; People v. Poznanski, 97 A.D.3d at 702, 948 N.Y.S.2d 359 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 ).
Moreover, upon this Court's independent review of the record, we conclude that a nonfrivolous issue exists as to whether the Family Court's custody determination was supported by a sound and substantial basis in the record, in particular regarding the relative fitness of the parents (see Matter of Islam v. Lee, 115 A.D.3d 952, 953, 982 N.Y.S.2d 772 ; Matter of Miguel R. v. Maria N., 104 A.D.3d 771, 772, 960 N.Y.S.2d 489 ; Matter of Chery v. Richardson, 88 A.D.3d 788, 788, 930 N.Y.S.2d 663 ; see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). Since a review of the record by the Appellate Division cannot substitute for the single-minded advocacy of appellate counsel, assignment of new counsel to prosecute the appeal is warranted (see Matter of Nava v. Kinsler, 78 A.D.3d 837, 912 N.Y.S.2d 228 ).
SCHEINKMAN, P.J., COHEN, DUFFY and CONNOLLY, JJ., concur.