PEOPLE v. ANDERSON (2018)

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas DeRosa, J.), rendered November 3, 2016, convicting him of criminal sexual act in the second 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 Thomas R. Villecco 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 John R. Lewis, 36 Hemlock Drive, Sleepy Hollow, NY, 10591, 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 April 25, 2017, 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.

Upon our independent review of the record, we conclude that there are nonfrivolous issues in this case, including, but not necessarily limited to, whether the purported waiver of the defendant's right to appeal was valid (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Moyett, 7 N.Y.3d 892, 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59;  People v. Pena–Gonzalez, 158 A.D.3d 823, 68 N.Y.S.3d 900;  People v. Johnson, 135 A.D.3d 960, 23 N.Y.S.3d 577;  People v. Guarchaj, 122 A.D.3d 878, 879, 996 N.Y.S.2d 372;  People v. Pelaez, 100 A.D.3d 803, 954 N.Y.S.2d 554) and, if such waiver is found to be invalid, whether the sentence imposed was excessive (see generally People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).  Accordingly, assignment of new counsel is warranted (see People v. Stokes, 95 N.Y.2d 633, 638, 722 N.Y.S.2d 217, 744 N.E.2d 1153;  Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 931 N.Y.S.2d 676).

BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.