Opinion
2012-02-14
The PEOPLE, etc., respondent, v. Christopher GRAVES, appellant.
Terry D. Horner, Poughkeepsie, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Terry D. Horner, Poughkeepsie, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered May 6, 2010, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant's omnibus motion which was to controvert a search warrant and to suppress physical evidence seized in execution thereof. 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 Terry D. Horner 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 Steven A. Feldman, Esq., 626 Reckson Plaza, West Tower, 6th Floor, Uniondale, N.Y., 11556, is assigned as counsel to perfect the appeal; and it is further,
ORDERED that the People are 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 this decision and order, and the People shall serve and file their brief within 120 days of this decision and order. By prior decision and order on motion of this Court dated August 3, 2010, 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.
Upon this Court's independent review of the record, we conclude that nonfrivolous issues exist at least as to whether the County Court properly denied that branch of the defendant's omnibus motion which was to controvert a search warrant and to suppress physical evidence seized in execution thereof ( cf. People v. Shemack, 40 A.D.3d 890, 834 N.Y.S.2d 488; People v. Henderson, 14 A.D.3d 714, 789 N.Y.S.2d 249; People v. Green, 230 A.D.2d 920, 921, 647 N.Y.S.2d 90; People v. Close, 198 A.D.2d 428, 429, 605 N.Y.S.2d 913), and as to whether the County Court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty ( see People v. Peoples, 24 A.D.3d 689, 690, 807 N.Y.S.2d 301; People v. Terry, 169 A.D.2d 745, 746, 565 N.Y.S.2d 723, 724. Accordingly, assignment of new counsel is warranted ( see generally Matter of Giovanni S. [ Jasmin A.], 89 A.D.3d 252, 254–261, 931 N.Y.S.2d 676).