PEOPLE v. PETRANGELO (2023)

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the County Court, Dutchess County (Jessica Segal, J.), rendered July 15, 2021, convicting him of attempted kidnapping 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 she moves for leave to withdraw as counsel for the appellant.

ORDERED that the motion of Yasmin Daley Duncan for leave to withdraw as counsel for the appellant 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 Carol Kahn, P.O. Box 1592, New York, New York 10028, 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 November 9, 2022, 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 defendant'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 adequately analyze potential appellate issues with references to facts that might arguably support the appeal (see People v. Santos, 210 A.D.3d 911, 912, 176 N.Y.S.3d 788;  People v. Wright, 209 A.D.3d 1046, 1047, 177 N.Y.S.3d 330;  People v. Grafton, 209 A.D.3d 871, 872, 175 N.Y.S.3d 492;  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 252, 256, 931 N.Y.S.2d 676;  see Anders v. California, 386 U.S. at 744–745, 87 S.Ct. 1396;  People v. Wright, 209 A.D.3d at 1047, 177 N.Y.S.3d 330).

Further, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the defendant's waiver of his right to appeal was valid (see People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239;  People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970), and whether the defendant's sentence was excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

DUFFY, J.P., FORD, DOWLING and TAYLOR, JJ., concur.