The People, etc., respondent, v. Benjamin Ramirez, appellant. (2025)

Submitted—December 6, 2024

DECISION & ORDER ON MOTION

(S.C.I. No. 1792/19)

ORDERED that Twyla Carter, The Legal Aid Society, 199 Water Street, 5th Floor,

New York, N.Y. 10038 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 order dated October 1, 2019, the Supreme Court, Queens County, granted an application pursuant to CPL former 380.55 for a waiver of costs, fees, and expenses and the assignment of counsel.  By prior decision and order on motion of this Court dated November 21, 2019, 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] ).

An appellate court's role in reviewing an attorney's motion to be relieved pursuant to Anders v. California (386 U.S. 738) consists of two separate and distinct steps (see People v. Murray, 169 AD3d 227, 231–232).  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’ ” (id. at 232, quoting Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 258).  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’ ” (id.).

Here, the brief submitted by the defendant's counsel pursuant to Anders v. California is deficient because it fails to adequately highlight facts in the record that might arguably support the appeal (see People v. Areizaga, 198 AD3d 981, 982;  People v. Lamery, 186 AD3d 1400, 1402) or to adequately analyze potential appellate issues, including, but not necessarily limited to, whether the orders of protection were validly entered (see People v. Gonzalez, 207 AD3d 656, 657;  People v. Lopez, 200 AD3d 805, 806).  Since the brief does not demonstrate that assigned counsel fulfilled her obligations under Anders v. California, we must assign new counsel to represent the defendant (see People v. Velez, 176 AD3d 1239, 1240;  People v. Nikac, 175 AD3d 1323, 1324).

DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court