PEOPLE v. WRIGHT (2022)

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark D. Cohen, J.), rendered September 16, 2020, convicting him of criminal possession of a controlled substance in the seventh degree and criminal use of drug paraphernalia 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 J. Butler for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein;  and it is further,

ORDERED that Mark Diamond, Box 388 Pound Ridge, Pound Ridge, New York 10576–9919, is assigned as new 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 January 11, 2021, 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.  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]).

The brief submitted by the appellant's assigned 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 contain an adequate statement of facts and fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v. Ellis, 156 A.D.3d 718, 719, 67 N.Y.S.3d 641;  Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676).  The statement of facts does not review, in any detail, the County Court's advisements to the appellant regarding the rights he was waiving by entering a plea of guilty, the inquiries made of the appellant to ensure that the plea of guilty was knowingly, intelligently, and voluntarily entered, or the appellant's responses to any of those advisements and inquiries (see People v. Velez, 176 A.D.3d 1239, 1240, 109 N.Y.S.3d 666;  People v. Ellis, 156 A.D.3d at 719, 67 N.Y.S.3d 641;  People v. Deprosperis, 126 A.D.3d 997, 998, 7 N.Y.S.3d 194).  Furthermore, 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 appeal (Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676;  see Anders v. California, 386 U.S. at 744–745, 87 S.Ct. 1396;  Matter of Thomas v. Mobley, 195 A.D.3d 933, 146 N.Y.S.3d 504).  Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the appellant (see People v. Velez, 176 A.D.3d at 1240, 109 N.Y.S.3d 666;  People v. Ellis, 156 A.D.3d at 720, 67 N.Y.S.3d 641;  Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676).

IANNACCI, J.P., RIVERA, ZAYAS and TAYLOR, JJ., concur.