People v Stultz

People v Stultz 2023 NY Slip Op 06540 Decided on December 20, 2023 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
ROBERT J. MILLER
LARA J. GENOVESI
LAURENCE L. LOVE, JJ.
2022-06280 ON MOTION
(Ind. No. 725/20)

[*1]The People of the State of New York, respondent,

v

Richard Stultz, appellant.

Stephen R. Mahler, Kew Gardens, NY, for appellant.

Anne T. Donnelly, District Attorney, Mineola, NY (Hilda Mortensen of counsel; Matthew C. Frankel on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Fran Ricigliano, J.), rendered June 13, 2022, convicting him criminal contempt in the first degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.

ORDERED that the motion of Stephen R. Mahler for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,

ORDERED that Steven Feinman, One North Broadway, Suite 412, White Plains, NY, 10601, is assigned as counsel to prosecute the appeal; and 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 dated August 15, 2022, pursuant to CPL 380.55(2), this Court directed that the appeal 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]).

"'To satisfy federal constitutional concerns, an appellate court faces two interrelated tasks as it rules on counsel's motion to withdraw. First, it must satisfy itself 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. Second, it must determine whether counsel has correctly concluded that the appeal is frivolous'" (Penson v Ohio, 488 US 75, 83, quoting McCoy v Court of Appeals of Wisconsin, Dist. 1, 486 US 429, 442). "'[W]here counsel has failed in his or her role as [*2]advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal'" (People v Singh, 210 AD3d 1017, 1018, quoting Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 258).

Here, the People correctly contend that assigned counsel's brief is deficient because it demonstrates that assigned counsel has not consulted with the appellant at any point during the representation (see People v Brown, 210 AD3d 1001, 1003-1004; People v Smith, 204 AD3d 838, 840-841). Accordingly, we must assign new counsel to represent the appellant.

LASALLE, P.J., MILLER, GENOVESI and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court