PEOPLE v. BENTIVEGNA (2025)

DECISION & ORDER ON MOTION

Appeals by the defendant from two judgments of the County Court, Nassau County (Tammy S. Robbins, J., at pleas;  Philippe Solages, Jr., J., at sentences), both rendered June 6, 2023, convicting him of criminal obstruction of breathing or blood circulation and criminal contempt in the first degree under Superior Court Information No. 70742/21, and aggravated criminal contempt under Superior Court Information No. 70743/21, upon his pleas of guilty, and imposing sentences.  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 Leon H. Tracy 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 Bruce R. Bekritsky, One Old Country Road, Suite 347, Carle Place, New York 11514, is assigned as counsel to prosecute the appeals;  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 of this Court dated April 12, 2024, the appellant was granted a waiver of costs, fees, and expenses and the assignment of counsel, with the appeals 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 “[f]irst ․ must 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 ․ appeal” (McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440;  see Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300).  “In analyzing whether nonfrivolous appellate issues exist, it is essential to appreciate the distinction between a potential appellate argument that is merely meritless or unlikely to prevail and one that is frivolous” (Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 258, 931 N.Y.S.2d 676).  “[T]he question is not whether the appeal presents any issues that have merit, but whether it presents any issues that are ‘arguable’ on the merits” (id. at 259–260, 931 N.Y.S.2d 676, quoting Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396).  “Appeals that present issues that may be arguable on their merits—even if weakly or marginally so—must be perfected to fulfill the defendant's right to receive, and the attorney's obligation to provide, zealous representation” (People v. Murray, 169 A.D.3d 227, 231, 93 N.Y.S.3d 694).

Here, “rather than acting as an advocate and evaluating whether there were any nonfrivolous issues to raise on appeal, assigned counsel has acted as ‘a mere advisor to the court,’ opining on the merits of the appeals” (Matter of Liana A. [Joseph A.], 235 A.D.3d 969, 970, 228 N.Y.S.3d 477, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676;  see People v. Brown, 236 A.D.3d 919, 920, 229 N.Y.S.3d 625).

Further, upon this Court's independent review of the record, we conclude, as the People correctly concede, that nonfrivolous issues exist.  These include, but are not necessarily limited to, whether an inquiry into the defendant's postplea assertions of innocence was warranted and whether there was “ ‘an affirmative showing on the record’ that the defendant waived his constitutional rights” (People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346, quoting People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646) so as to demonstrate that his pleas of guilty were made voluntarily, knowingly, and intelligently.

IANNACCI, J.P., MILLER, WAN and LANDICINO, JJ., concur.