Opinion
2020–00281 Ind. 18–530
11-12-2020
The PEOPLE, etc., respondent, v. Patrick WILLIAMS, appellant.
Andrew W. Sayegh, Yonkers, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent (no brief filed).
Andrew W. Sayegh, Yonkers, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent (no brief filed).
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER ON MOTION
ORDERED that the motion of Andrew E. Sayegh 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 Thomas T. Keating, 39A Cedar Street, Dobbs Ferry, NY, 10522, 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 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 February 10, 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] ).
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, 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, 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 ).
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 analyze potentially nonfrivolous appellate issues—including, but not necessarily limited to, whether the defendant's sentence was excessive—with reference to relevant legal authority (see People v. Espinoza, 186 A.D.3d 1242, 127 N.Y.S.3d 898 ).
Moreover, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the defendant's purported appeal waiver is valid and whether the sentence imposed was excessive (see People v. Corley, 186 A.D.3d 1239, 127 N.Y.S.3d 904 ).
Accordingly, under the circumstances, the assignment of new counsel is warranted (see People v. Stokes, 95 N.Y.2d 633, 638, 722 N.Y.S.2d 217, 744 N.E.2d 1153 ).
BALKIN, J.P., CHAMBERS, COHEN, CONNOLLY and WOOTEN, JJ., concur.