PEOPLE v. MARTINES (2024)

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Terence P. Murphy, J.), rendered October 17, 2022, convicting him of manslaughter in the first degree and conspiracy 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 Richard M. Langone 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 Joseph DeFelice, 125–10 Queens Boulevard, Suite 302, Kew Gardens, N.Y. 11415, 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 April 14, 2023, 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]).

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).  An adequate Anders brief “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” (id. at 258, 931 N.Y.S.2d 676).  “[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal” (id.;  see People v. Ponce, 221 A.D.3d 914, 915, 201 N.Y.S.3d 101).

Here, the brief submitted by assigned counsel pursuant to (Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493) is deficient.  The brief “does not address, inter alia, the colloquy regarding the defendant's purported waiver of his right to appeal, or address whether the sentence imposed was excessive” (People v. Rodriguez, 186 A.D.3d 749, 750, 127 N.Y.S.3d 288).  “Since the defendant did not receive the minimum sentence authorized by statute, counsel's failure to identify and analyze the appellate waiver and the sentence was consequential” (id. [citation omitted];  cf.  People v. Murray, 169 A.D.3d 227, 234–235, 93 N.Y.S.3d 694).  Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the appellant (see People v. Ponce, 221 A.D.3d at 915, 201 N.Y.S.3d 101).

DILLON, J.P., MILLER, VOUTSINAS and VENTURA, JJ., concur.