Opinion
2020–05730 S.C.I. No. 793/19
03-30-2022
The PEOPLE, etc., respondent, v. Robert J. PASSANTINO, appellant.
Adam Seiden, Mount Vernon, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent (no brief filed).
Adam Seiden, Mount Vernon, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent (no brief filed).
BETSY BARROS, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, PAUL WOOTEN, JJ.
DECISION & ORDER ON MOTION
Appeal by the defendant from a judgment of the County Court, Westchester County (Michael A. Martinelli, J., at plea; Melissa A. Loehr, J., at sentence), rendered March 9, 2020, convicting him of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2), 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 Adam Seiden 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 Mark Diamond, P.O. Box 287359, Yorkville Station, N.Y. 10128, 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 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 March 12, 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]).
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 ) is deficient because it fails to contain an adequate statement of facts and fails to adequately analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v. London, 198 A.D.3d 920, 921, 152 N.Y.S.3d 845 ; People v. Morales, 180 A.D.3d 934, 934–935, 116 N.Y.S.3d 573 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676 ). Moreover, upon this Court's independent review of the record, we conclude that there are nonfrivolous issues in this case, including, but not necessarily limited to, the validity of the appeal waiver and whether the portion of the defendant's sentence directing him to install an ignition interlock device on any vehicle he owns or operates for a period of three years was excessive (see People v. London, 198 A.D.3d at 922, 152 N.Y.S.3d 845 ; People v. Rodriguez, 186 A.D.3d 749, 750, 127 N.Y.S.3d 288 ).
BARROS, J.P., RIVERA, CHAMBERS and WOOTEN, JJ., concur.