PEOPLE v. CUMMINGS (2019)

DECISION & ORDER ON MOTION

ORDERED that the motion of Joseph A. Hanshe 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 Martin Goldberg, 672 Dogwood Avenue, #183, Franklin Square, New York, 11010, 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 February 1, 2018, 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 file one original and five duplicate hard copies, and one digital copy, of their respective briefs, and to serve one hard copy on each other (see 22 NYCRR 1250.9[a][4], [c][1] ).

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 must first be satisfied “ ‘that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal’ ” (Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 255, 931 N.Y.S.2d 676, quoting Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300).  “[C]ounsel must, at a minimum, draw the Court's attention to the 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” (Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676).

Here, the Anders brief submitted by the appellant's counsel was deficient because it failed to adequately analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493;  People v. Gonzalez, 47 N.Y.2d 606, 610–611, 419 N.Y.S.2d 913, 393 N.E.2d 987;  People v. Dimon, 164 A.D.3d 600, 601, 78 N.Y.S.3d 683;  People v. Solomon, 162 A.D.3d 912, 913, 80 N.Y.S.3d 81;  Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 257–258, 931 N.Y.S.2d 676).  The brief, which contained an indiscriminate narrative of the facts and a single point heading, failed to analyze whether any potential issues arose from the plea or sentencing proceedings with reference to the facts of the case and relevant legal authority, or to marshal arguments on the defendant's behalf.  It set forth a single point heading entitled “application to withdraw” followed by counsel's statement that he had “examined all the potential issues and the relevant case law” and concluded “that there are no meritorious issues on this appeal” without discussing the basis for this conclusion or citing any cases or other legal authority in support thereof (see People v. Gonzalez, 47 N.Y.2d at 607, 610, 419 N.Y.S.2d 913, 393 N.E.2d 987;  People v. Deprosperis, 126 A.D.3d 997, 998, 7 N.Y.S.3d 194).  Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders, we must assign new counsel to represent the appellant (see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493;  People v. Sedita, 113 A.D.3d 638, 640, 978 N.Y.S.2d 318;  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 at 258, 931 N.Y.S.2d 676).

Moreover, upon our independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the sentence imposed was excessive (see generally People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

AUSTIN, J.P., ROMAN, HINDS–RADIX and CHRISTOPHER, JJ., concur.