Opinion
2015–08012 Ind.No. 14–00152
02-28-2018
The PEOPLE, etc., respondent, v. Jaquelle JAMES, appellant.
Alex Smith, Middletown, NY, for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz of counsel), for respondent.
Alex Smith, Middletown, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz of counsel), for respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ON MOTIONAppeal by the defendant from a judgment of the County Court, Orange County (Nicholas De Rosa, J.), rendered August 18, 2014, convicting him of murder 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 Alex Smith for leave to withdraw as counsel is granted, and he is directed to turn over all papers in his possession to the appellant's new counsel assigned herein; and it is further,
ORDERED that Kenyon C. Trachte, 372 Fullerton Avenue, Box # 19, Newburgh, NY, 12550, 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 appellant's 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 November 9, 2016, 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 counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 was deficient. The statement of facts, which is one page long, did not sufficiently describe the plea allocution. In particular, the statement of facts did not review, in any detail, the Supreme Court's advisements to the appellant regarding the rights he was waiving, the inquiries made of the appellant to ensure that the plea was knowingly and voluntarily entered, or the appellant's responses to any of those advisements and inquiries (see People v. Deprosperis, 126 A.D.3d 997, 998, 7 N.Y.S.3d 194 ; People v. Donovan, 124 A.D.3d 793, 794, 998 N.Y.S.2d 659 ; People v. Sedita, 113 A.D.3d 638, 639–640, 978 N.Y.S.2d 318 ). Furthermore, it did not provide any detail regarding the appellant's factual admission as to the crime charged or the colloquy regarding the appellant's purported waiver of his right to appeal (see People v. Ferretti, 148 A.D.3d 720, 721, 47 N.Y.S.3d 736 ; People v. Swenson, 130 A.D.3d 848, 849, 12 N.Y.S.3d 557 ; People v. Sedita, 113 A.D.3d at 639–640, 978 N.Y.S.2d 318 ).In addition, the brief failed to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v. Deprosperis, 126 A.D.3d at 998, 7 N.Y.S.3d 194 ; People v. Donovan, 124 A.D.3d at 794, 998 N.Y.S.2d 659 ; People v. McNair, 110 A.D.3d 742, 971 N.Y.S.2d 889 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676 ). In this respect, the brief merely states, in conclusory fashion, that counsel has "not been able to find any nonfrivolous issues which could be raised on this appeal." The brief does not discuss the basis, with reference to the facts of the case and legal authority, of counsel's conclusion that the appeal is wholly frivolous (see Smith v. Robbins, 528 U.S. 259, 278 n. 10, 120 S.Ct. 746, 145 L.Ed.2d 756 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 257, 931 N.Y.S.2d 676 ). Since the brief did not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the appellant (see People v. Rivera, 142 A.D.3d 512, 513, 35 N.Y.S.3d 722 ; People v. Parker, 135 A.D.3d 966, 968, 23 N.Y.S.3d 393 ; People v. Sedita, 113 A.D.3d at 639–640, 978 N.Y.S.2d 318 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ).
DILLON, J.P., SGROI, HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.