PEOPLE v. PHILPOT (2025)

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas De Rosa, J.), rendered April 5, 2011, convicting him of attempted assault in the first 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 Edward C. Bruno for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to the appellant's new counsel assigned herein;  and it is further,

ORDERED that Samuel Coe, 50 Main St., Ste. 1000, White Plains, N.Y. 10606 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 October 13, 2011, the appellant was granted a waiver of costs, fees, and expenses and the assignment of counsel, 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 appellate court is satisfied with the sufficiency of the brief, the court then reaches step two of its review, 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 the defendant's counsel pursuant to Anders v. California is deficient because it fails to adequately analyze potential appellate issues with reference to the record and relevant legal authority, including, but not necessarily limited to, whether the County Court erred in denying the defendant's motion to withdraw his guilty plea, the defendant's competency to enter the guilty plea, the validity of the waiver of the right to appeal, and any potential ineffective assistance of counsel claim (see People v. Ramirez, 215 A.D.3d at 985, 187 N.Y.S.3d 326;  Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258–260, 931 N.Y.S.2d 676).  Additionally, the contention by the defendant's counsel that the defendant entered a voluntary guilty plea was conclusory.

Accordingly, 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).

CHAMBERS, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.