Opinion
2020-00354 Ind. No. 344/19
03-17-2021
The PEOPLE, etc., respondent, v. Frederik Francisco ESPINAL REGALADO, appellant.
Bruce R. Bekritsky, Mineola, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Jared A. Chester of counsel; Matthew C. Frankel on the brief), for respondent.
Bruce R. Bekritsky, Mineola, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Jared A. Chester of counsel; Matthew C. Frankel 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, Nassau County ( Robert G. Bogle, J.), rendered June 27, 2019, convicting him of grand larceny in the third degree (three counts), 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 Bruce R. Bekritsky 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 Richard M. Langone, 600 Old Country Road, Suite 328, Garden City, NY, 11530, is assigned as counsel to perfect 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 April 13, 2020, 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]).
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 should be accompanied by a brief " ‘reciting the underlying facts and highlighting anything in the record that might arguably support the appeal’ " ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676, quoting People v. Saunders, 52 A.D.2d 833, 833, 384 N.Y.S.2d 161 ). As this Court has explained, "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, applications, 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 ). "Counsel cannot merely recite the underlying facts, and state a bare conclusion that, after reviewing the record and discussing the case with the client, it is the writer's opinion that there are no nonfrivolous issues to be raised on appeal" ( id. ).
The brief submitted by the appellant's counsel pursuant to Anders is deficient because it fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v. Santos, 180 A.D.3d 941, 942, 115 N.Y.S.3d 907 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 ). After reciting information contained in the plea and sentencing transcripts, the brief states in a conclusory fashion that counsel sees no appellate issues in the record that might arguably support an appeal (see People v. Sofo, 186 A.D.3d 873, 875, 127 N.Y.S.3d 804 ; People v. Santos, 180 A.D.3d at 942, 115 N.Y.S.3d 907 ; People v. James, 158 A.D.3d 820, 822, 68 N.Y.S.3d 906 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ). Since the brief does not demonstrate that assigned counsel fulfilled his obligation under Anders, we must assign new counsel to represent the appellant (see People v. Rivera, 142 A.D.3d 512, 512–513, 35 N.Y.S.3d 722 ; People v. Parker, 135 A.D.3d 966, 968, 23 N.Y.S.3d 393 ; 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.