PEOPLE v. VILLATORO (2025)

ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted, and new counsel is assigned pursuant to article 18-B of the County Law to prosecute the appeal;

Mark Diamond, Esq.

P.O. Box 388

Pound Ridge, NY 10576

Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel. New counsel is directed to serve and file a brief within 90 days after the date of this order and decision. The People may serve and file a respondent's brief within 21 days after the service upon them of the appellant's brief. Appellant's new counsel, if so advised, may serve and file a reply brief within seven days after service of the respondent's brief.

Assigned counsel submitted an Anders brief setting forth the conclusion that there exist no nonfrivolous issues that could be raised on appeal (see Anders v California, 386 US 738 [1967]). However, the brief is deficient because it fails to adequately analyze potential appellate issues or highlight facts in the record that might arguably support an appeal (see People v Ponce, 221 AD3d 914, 915 [2023]; People v Murray, 169 AD3d 227 [2019]; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256 [2011]), including the facial sufficiency of the accusatory instrument, which is a nonwaivable jurisdictional issue that survives a guilty plea (see People v Dreyden, 15 NY3d 100, 103 [2010]). Additionally, an independent review of the record reveals the existence of at least one possible nonfrivolous issues regarding the factual sufficiency of the plea allocution (see e.g. People v Worden, 22 NY3d 982, 984 [2013]; People v White, 42 Misc 3d 140[A], 2014 NY Slip Op 50210[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]).

Accordingly, we hold the appeal in abeyance, grant assigned counsel's application for leave to withdraw as counsel and assign new counsel to ascertain whether defendant desires to raise the issues set forth above, and to prosecute the appeal on defendant's behalf with respect to these issues or any other issue that can be identified.

DRISCOLL, J.P., WALSH and CONWAY, JJ., concur.