Opinion
2018–00025 Ind. No. 2095/16
04-21-2021
The PEOPLE, etc., respondent, v. Larry HILL, appellant.
Janet E. Sabel, New York, N.Y. (Denise Fabiano of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Danielle S. Fenn of counsel; Deanna Russo on the brief), for respondent.
Janet E. Sabel, New York, N.Y. (Denise Fabiano of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Danielle S. Fenn of counsel; Deanna Russo on the brief), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ON MOTION
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joseph Zayas, J.), rendered November 16, 2017, convicting him of criminal sale of a controlled substance in the third 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 she moves for leave to withdraw as counsel for the appellant.
ORDERED that the motion of Janet E. Sabel for leave to withdraw as counsel for the appellant is granted, and she is directed to turn over all papers in her possession to new counsel assigned herein; and it is further,
ORDERED that Paul Skip Laisure, 111 John Street, 9th Floor, New York, NY, 10038, 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 January 12, 2018, 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 file one original and five duplicate hard copies, and one digital copy, of their respective briefs, and to serve one hard copy on each other (see 22 NYCRR 1250.9 [a][4]; [c][1]).
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 [emphasis omitted], quoting Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 ). As this Court explained in Matter of Giovanni S. (Jasmin A.), "counsel 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, application, 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 ).
The brief submitted by the appellant's counsel pursuant to Anders v. California is deficient because it fails to adequately analyze potentially nonfrivolous appellate issues (see People v. Dimon, 164 A.D.3d 600, 601, 78 N.Y.S.3d 683 ).
Moreover, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the appellant's plea was knowing, voluntary, and intelligent (see People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Dimon, 164 A.D.3d at 601, 78 N.Y.S.3d 683 ; People v. Gavarette, 130 A.D.3d 646, 647, 10 N.Y.S.3d 889 ).
Accordingly, we must assign new counsel to represent the appellant (see Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ).
DILLON, J.P., AUSTIN, BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.