PEOPLE v. MCCALLA (2018)

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Christopher Quinn, J.), rendered January 5, 2016, convicting him of burglary in the second degree  (three counts), grand larceny in the third degree, criminal mischief in the second degree, and criminal mischief in the fourth degree (two counts), 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 Bruce R. Bekritsky for leave to withdraw as counsel 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 Thomas R. Villecco, 366 North Broadway, Suite 410, Jericho, NY, 11753, 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 of this Court dated March 21, 2016, 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, who were directed to file nine copies of their respective briefs and to serve one copy on each other.

The brief submitted by the appellant's counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493) is deficient because it fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v. Rivera, 142 A.D.3d 512, 35 N.Y.S.3d 722;  People v. Parker, 135 A.D.3d 966, 968, 23 N.Y.S.3d 393;  People v. McNair, 110 A.D.3d 742, 743, 971 N.Y.S.2d 889;  Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676).  Assigned counsel failed to draw the Court's attention to any “significant objections, applications, or motions” regarding the hearing on the defendant's pretrial suppression motion (Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676;  see People v. Carlos, 126 A.D.3d 911, 912, 2 N.Y.S.3d 910).  Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493), we must assign new counsel to represent the appellant (see People v. Sedita, 113 A.D.3d 638, 639–640, 978 N.Y.S.2d 318;  People v. McNair, 110 A.D.3d 742, 971 N.Y.S.2d 889;  Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676).

Moreover, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the Supreme Court properly denied the defendant's pretrial suppression motion (see People v. Carlos, 126 A.D.3d at 913, 2 N.Y.S.3d 910;  People v. Frazier, 124 A.D.3d 909, 910, 998 N.Y.S.2d 902;  People v. Hardman, 110 A.D.3d 917, 918, 972 N.Y.S.2d 687), and whether the sentence imposed was excessive (see generally People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.