PEOPLE v. GUMBS (2025)

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the County Court, Westchester County (Susan M. Capeci, J., at plea;  Helen M. Blackwood, J., at sentence), rendered March 8, 2022, convicting him of attempted criminal possession of a controlled substance in the third 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 Jason M. Bernheimer 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 L. Herzfeld, 112 Madison Ave., 8th Fl., New York, NY 10016, 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 September 27, 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]).

An appellate court's role 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 consists of two separate and distinct steps (see People v. Ramirez, 215 A.D.3d 984, 985, 187 N.Y.S.3d 326;  People v. Murray, 169 A.D.3d 227, 231–232, 93 N.Y.S.3d 694).  Step one requires the appellate court to perform “[an] evaluation of assigned counsel's brief, which must, to be adequate, discuss ‘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’ ” (People v. Murray, 169 A.D.3d at 232, 93 N.Y.S.3d 694, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 258, 931 N.Y.S.2d 676;  see People v. Ramirez, 215 A.D.3d at 985, 187 N.Y.S.3d 326).  Assigned appellate counsel must also “promptly obtain any transcripts, and consult with the client, as well as with trial counsel” (People v. Brown, 210 A.D.3d 1001, 1003, 178 N.Y.S.3d 771 [internal quotation marks omitted]).  If the court is satisfied with the sufficiency of the brief, the court reaches step two, which requires the court to perform “an ‘independent review of the record’ to determine whether ‘counsel's assessment that there are no nonfrivolous issues for appeal is correct’ ” (People v. Murray, 169 A.D.3d at 232, 93 N.Y.S.3d 694, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676;  see People v. Ramirez, 215 A.D.3d at 985, 187 N.Y.S.3d 326).

Here, the brief submitted by assigned counsel pursuant to Anders v. California is deficient because it fails to adequately analyze potential appellate issues with reference to the relevant legal authority, including, but not necessarily limited to, whether the defendant waived his right to be present at sentencing (see generally People v. Rossborough, 27 N.Y.3d 485, 488–489, 34 N.Y.S.3d 399, 54 N.E.3d 71;  People v. Rodriguez, 186 A.D.3d 625, 626, 126 N.Y.S.3d 913), whether the defendant violated the terms of interim probation pursuant to his plea agreement (see generally People v. Picciochi, 175 A.D.3d 1563, 1564, 109 N.Y.S.3d 451;  People v. Maldonado, 44 A.D.3d 793, 793, 843 N.Y.S.2d 415), and whether the sentence imposed was excessive (see People v. Smith, 204 A.D.3d 838, 840, 166 N.Y.S.3d 268).  The brief also fails to contain an adequate statement of the facts, as it does not review the transcript of the proceeding where the defendant's promised sentence in the alternative was amended from two years of imprisonment to three years of imprisonment.

In sum, 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. Ramirez, 215 A.D.3d at 985–986, 187 N.Y.S.3d 326;  Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676).

CHRISTOPHER, J.P., WARHIT, WAN and TAYLOR, JJ., concur.