PEOPLE v. LISBON (2024)

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the County Court, Orange County (Hyun Chin Kim, J.), rendered March 21, 2023, convicting him of driving while intoxicated, 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 Samuel S. Coe 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 Paul N. Weber, P.O. Box 330, Cornwall, N.Y. 12518, 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 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 dated June 26, 2023, pursuant to CPL 380.55(2), this Court directed that the appeal 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 [emphasis omitted], quoting Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300).  “[C]ounsel 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;  see People v. Murray, 169 A.D.3d 227, 231–232, 93 N.Y.S.3d 694;  People v. Randolph, 156 A.D.3d 818, 819, 65 N.Y.S.3d 726).  “ ‘[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’ ” (People v. Rodrigues, 229 A.D.3d 463, 464, 214 N.Y.S.3d 145, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676).

Here, the brief submitted by assigned counsel pursuant to Anders v. California is deficient because it fails to analyze potential appellate issues with reference to legal authority or highlight facts in the record that might arguably support the appeal (see People v. Rodrigues, 229 A.D.3d at 464, 214 N.Y.S.3d 145;  People v. Trent, 220 A.D.3d 889, 890, 196 N.Y.S.3d 572).  “ ‘Specifically, the statement of facts does not review, in any detail, the [County] Court's advisements to the defendant regarding the rights [he] was waiving, the inquiries made of the defendant to ensure that the plea was knowing and voluntary, or the defendant's responses to any of those advisements and inquiries.  Nor does it provide any detail regarding the defendant's factual admissions as to the crime charged’ ” (People v. Rodrigues, 229 A.D.3d at 464–465, 214 N.Y.S.3d 145, quoting People v. Johnson, 126 A.D.3d 916, 917, 2 N.Y.S.3d 919).  The brief also “fails to provide the relevant colloquy/facts concerning the defendant's purported waiver of his right to appeal with citation to legal authority,” or “to analyze whether the defendant has a nonfrivolous claim that the sentence imposed was excessive” (People v. Corley, 186 A.D.3d 1239, 1240, 127 N.Y.S.3d 904).  Further, the brief fails to adequately analyze the potential appellate issue of whether the defendant's plea of guilty was knowingly, intelligently, and voluntarily entered (see People v. Jones, 202 A.D.3d 827, 828, 158 N.Y.S.3d 869).

Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the defendant (see People v. Rodrigues, 229 A.D.3d at 465, 214 N.Y.S.3d 145;  People v. Trent, 220 A.D.3d at 890, 196 N.Y.S.3d 572).

CONNOLLY, J.P., CHRISTOPHER, DOWLING and VENTURA, JJ., concur.