People v Espinal (Jonathan)

[*1] People v Espinal (Jonathan) 2017 NY Slip Op 50300(U) Decided on March 13, 2017 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 13, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570569/12

The People of the State of New York, Respondent,

against

Jonathan Espinal, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Frank P. Nervo, J.), rendered December 13, 2011, convicting him, upon a plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposing sentence.

Per Curiam.

Appeal from judgment (Frank P. Nervo, J.), rendered December 13, 2011, held in abeyance, the application by assigned counsel for leave to withdraw on the ground that there are no valid issues to be raised on appeal (People v Saunders, 52 AD2d 833 [1976]), granted to the extent of relieving counsel without compensation, assigning Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th floor, New York, NY 10005, (212) 577-2523, as new counsel, and enlarging the time to perfect the appeal to the September Term of this Court.

While we express no opinion with respect to the merits, or lack thereof, of any possible issue, we find that there may be issues regarding whether defendant voluntarily and understandingly waived his constitutional rights before he entered his plea of guilty (see People v Conceicao, 26 NY3d 375 [2015]) that would not be "wholly frivolous" under the Saunders standard. In addition, counsel's letter to defendant was deficient because it misstated the crime of which defendant was convicted. Accordingly, the requirements of a Saunders brief have not been satisfied (see People v Stokes, 95 NY2d 633, 636—637 [2001]). Since our own review cannot substitute for the single-minded advocacy of appellate counsel, a new assignment of counsel and reconsideration of the appeal is required (see People v Casiano, 67 NY2d 906 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 13, 2017