PEOPLE v. NIKAC (2019)

DECISION & ORDER ON MOTION

ORDERED that the motion of Stacy Eves for leave to withdraw as counsel is granted, and she is directed to turn over all papers in her possession to the appellant's new counsel assigned herein;  and it is further,

ORDERED that Patrick Megaro, 626 RXR Plaza, 6th Floor, West Tower, Uniondale, New York, 11556, 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 16, 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] ).

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, should be accompanied by a brief “ ‘reciting the underlying facts and highlighting anything in the record that might arguably support the appeal’ ” (Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676, quoting People v. Saunders, 52 A.D.2d 833, 833, 384 N.Y.S.2d 161).  As this Court has explained, “counsel 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 brief submitted by the appellant's counsel pursuant to Anders v. California was deficient because it merely discussed three issues the defendant sought to raise without any reference to relevant legal authority, and failed to independently analyze whether any potential appellate issues arose from the pretrial, plea, or sentencing proceedings or highlight facts in the record that might arguably support the appeal (see People v. Randolph, 156 A.D.3d 818, 65 N.Y.S.3d 726;  Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676;  People v. Barger, 72 A.D.3d 696, 697, 897 N.Y.S.2d 521;  People v. Henry, 143 A.D.2d 277, 278, 532 N.Y.S.2d 155).  Since the brief does not demonstrate that assigned counsel fulfilled her obligations under Anders v. California, we must assign new counsel to represent the appellant (see 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).

CHAMBERS, J.P., LASALLE, IANNACCI and CHRISTOPHER, JJ., concur.