Opinion
2014-1544 W CR NO.
06-15-2017
The People of the State of New York, Respondent, v. Orlando Scott, Appellant.
Rametta & Rametta, LLC (Robert Rametta, Esq.), for appellant. District Attorney Westchester County, for respondent (no brief filed).
PRESENT: :
Rametta & Rametta, LLC (Robert Rametta, Esq.), for appellant.
District Attorney Westchester County, for respondent (no brief filed).
Appeal from a judgment of the City Court of Mount Vernon, Westchester County (William Edwards, J., at plea; Mark A. Gross, J., at sentence), rendered June 18, 2014. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), seeking leave to withdraw as counsel.
ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted, and new counsel is assigned pursuant to article 18-B of the County Law to prosecute the appeal. New counsel is directed to serve and file a brief within 90 days after the date of this decision and order. The People may serve and file a respondent's brief within 21 days after the service upon them of the appellant's brief. Appellant's new counsel, if so advised, may serve and file a reply brief within seven days after service of the respondent's brief. Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel;
Clinton W. Calhoun, III, Esq.
81 Main Street, Suite 450
White Plains, NY 10601
Assigned counsel submitted a brief in accordance with Anders v California (386 US 738 [1967]), setting forth his conclusion that there exist no nonfrivolous issues that could be raised on appeal. However, the brief submitted by assigned counsel contains a deficient statement of facts, which fails to "sufficiently describe the plea allocution" and does not "provide any detail regarding the defendant's factual admissions as to the crime charged" (People v Sedita, 113 AD3d 638, 640 [2014]). Thus, the brief does not demonstrate that assigned counsel acted as an active advocate for his client, or that he "diligently examined the record" (id.; see Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 255-256 [2011]; People v Bravo, 50 Misc 3d 132[A], 2015 NY Slip Op 51943[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; see also People v Deprosperis, 126 AD3d 997, 998 [2015]; People v Donovan, 124 AD3d 793, 794-795 [2015]; People v Pannettiere, 114 AD3d 882, 882-883 [2014]). Furthermore, while the brief indicates that counsel invited comment from defendant, no letter to defendant is annexed to the brief, and counsel does not state how he has communicated or consulted with defendant (see People v Casiano, 67 NY2d 906, 907 [1986]).
Thus, as we find that the brief submitted by assigned counsel is deficient (see Matter of Giovanni S. [Jasmin A.], 89 AD3d at 252; People v Barger, 72 AD3d 696 [2010]; People v Jones, 22 Misc 3d 46 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]), we assign new counsel to prosecute the appeal.
Accordingly, the appeal is held in abeyance, assigned counsel's application to be relieved of his representation is granted, and new counsel is assigned to prosecute the appeal.
Tolbert, J.P., Garguilo and Brands, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 15, 2017