Opinion
2021–01437 Ind. No. 789/19
03-23-2022
The PEOPLE, etc., respondent, v. Wilber Campos CHICAS, appellant.
Joseph A. Hanshe, Sayville, NY, for appellant. Raymond A. Tierney, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.
Joseph A. Hanshe, Sayville, NY, for appellant.
Raymond A. Tierney, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.
BETSY BARROS, J.P., REINALDO E. RIVERA, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER ON MOTION
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Richard Ambro, J.), rendered January 21, 2020, convicting him of attempted conspiracy in the second degree, upon his plea of guilty, and imposing sentence. 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 Joseph A. Hanshe for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,
ORDERED that Salvatore C. Adamo, 1345 Avenue of the Americas, 2nd Fl., New York, N.Y. 10105, 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 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 the date 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 19, 2021, 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]).
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, this Court must first " ‘satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal’ " ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 255, 931 N.Y.S.2d 676, quoting Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 ; see People v. Murray, 169 A.D.3d 227, 93 N.Y.S.3d 694 ). "[C]ounsel must, at a minimum, draw the Court's attention to the 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" ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ; see People v. Murray, 169 A.D.3d at 231–232, 93 N.Y.S.3d 694 ; People v. Randolph, 156 A.D.3d 818, 819, 65 N.Y.S.3d 726 ). "Counsel cannot merely recite the underlying facts, and state a bare conclusion that, after reviewing the record and discussing the case with the client, it is the writer's opinion that there are no nonfrivolous issues to be raised on appeal" ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ). If assigned counsel's brief is deficient in this respect, "new counsel must be assigned to perform a new appellate review" ( People v. Murray, 169 A.D.3d at 232, 93 N.Y.S.3d 694 ).
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 is deficient because it fails to analyze potential legal issues with reference to the facts of the case and relevant legal authority (see People v. Holley, 193 A.D.3d 878, 142 N.Y.S.3d 376 ; People v. Regalado, 192 A.D.3d 918, 140 N.Y.S.3d 785 ; People v. Adams, 192 A.D.3d 821, 139 N.Y.S.3d 865 ; People v. Persaud, 187 A.D.3d 1060, 1062, 131 N.Y.S.3d 187 ; People v. Santos, 180 A.D.3d 941, 115 N.Y.S.3d 907 ; People v. Sedita, 113 A.D.3d 638, 640, 978 N.Y.S.2d 318 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 ). After reciting the facts relating to the defendant's plea and sentence, the brief merely states in conclusory fashion that no nonfrivolous issues exist (see People v. Santos, 180 A.D.3d 941, 115 N.Y.S.3d 907 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 ). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the defendant (see People v. Santos, 180 A.D.3d 941, 115 N.Y.S.3d 907 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 ).
BARROS, J.P., RIVERA, WOOTEN and DOWLING, JJ., concur.