Opinion
2013-12-4
The PEOPLE, etc., respondent, v. Nisean GRAVES, appellant.
Carl D. Birman, Mamaroneck, N.Y. (main brief), and Richard L. Herzfeld, New York, N.Y. (supplemental brief), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Steven A. Bender of counsel), for respondent.
Carl D. Birman, Mamaroneck, N.Y. (main brief), and Richard L. Herzfeld, New York, N.Y. (supplemental brief), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Cacace, J.), rendered November 30, 2010, convicting him of attempted rape in the first degree, upon his plea of guilty, and imposing sentence. By decision and order of this Court dated May 8, 2012, the matter was remitted to the County Court, Westchester County, to hear and determine the defendant's motion to withdraw his plea of guilty, and the appeal was held in abeyance in the interim (see People v. Graves, 95 A.D.3d 1034, 943 N.Y.S.2d 593). The County Court has now submitted its report. By decision and order on motion of this Court dated April 26, 2013, the motion of Carl D. Birman for leave to withdraw as counsel was granted and Richard L. Herzfeld was assigned to serve and file a supplemental brief, if he be so advised, regarding the hearing on the defendant'smotion to withdraw his plea of guilty and the new determination by the County Court, Westchester County, of that motion. Richard L. Herzfeld has submitted a supplemental 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 judgment is affirmed.
In a decision and order dated May 8, 2012, this Court determined that the defendant's right to counsel was adversely affected when his attorney took a position adverse to him on his motion to withdraw his plea of guilty. We therefore remitted the matter to the County Court, Westchester County, for the appointment of new counsel, followed by a hearing on the defendant's motion to withdraw his plea of guilty and a new determination of the motion thereafter (see People v. Graves, 95 A.D.3d 1034, 943 N.Y.S.2d 593). The County Court now reports that it appointed new counsel for the defendant, held a hearing on his motion to withdraw his plea of guilty, and denied the motion.
We are satisfied with the sufficiency of the supplemental brief filed by Richard L. Herzfeld pursuant to Anders v. California (386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on the appeal. Richard L. Herzfeld's application for leave to withdraw as counsel is, therefore, granted ( see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; Matter of Giovanni S. [ Jasmin A. ], 89 A.D.3d 252, 931 N.Y.S.2d 676; People v. Paige, 54 A.D.2d 631, 387 N.Y.S.2d 399; cf. People v. Gonzalez, 47 N.Y.2d 606, 419 N.Y.S.2d 913, 393 N.E.2d 987). RIVERA, J.P., DILLON, ANGIOLILLO and LEVENTHAL, JJ., concur.