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PEOPLE v. SOLOMON (2018)

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Edward K. SOLOMON, appellant.

2017–00598

Decided: June 20, 2018

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ. Laurette D. Mulry, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (John B. Collins, J.), rendered November 30, 2016, convicting him of criminal sale of a controlled substance 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 Laurette D. Mulry 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 Del Atwell, 39 5th Street, East Hampton, NY, 11937, 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 13, 2017, 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, who were directed to file nine copies of their respective briefs and to serve one copy on each other.

In reviewing an attorney's motion to be relieved pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 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).  As this Court explained in Matter of Giovanni S. [Jasmin A.], “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” (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, 386 U.S. 738, 87 S.Ct. 1396 is deficient because it fails to analyze potential appellate issues with reference to the relevant legal authority or highlight facts in the record that might arguably support the appeal (see People v. Deprosperis, 126 A.D.3d 997, 998, 7 N.Y.S.3d 194;  People v. Sedita, 113 A.D.3d 638, 639–640, 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 256, 931 N.Y.S.2d 676).  Since the brief does not demonstrate that assigned counsel has fulfilled her obligations under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, we must assign new counsel to represent the appellant (see People v. Deprosperis, 126 A.D.3d at 998, 7 N.Y.S.3d 194;  People v. Sedita, 113 A.D.3d at 640, 978 N.Y.S.2d 318;  People v. McNair, 110 A.D.3d at 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).

RIVERA, J.P., MILLER, DUFFY and LASALLE, JJ., concur.

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