People v Jones (Eric)

[*1] People v Jones (Eric) 2012 NY Slip Op 50082(U) Decided on January 20, 2012 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., NICOLAI and IANNACCI, JJ
2007-475 W CR. -x

The People of the State of New York, Respondent,

against

Eric Jones, Appellant. -x

Appeal from judgments of the City Court of New Rochelle, Westchester County (John P. Colangelo, J.), entered March 2, 2007. The judgments convicted defendant, upon his pleas of guilty, of petit larceny and bail jumping in the third degree, respectively.

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. 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. Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel.

Defendant's prior assigned counsel submitted an Anders brief (see Anders v California, 386 US 738 [1967]). By order dated December 19, 2008, this court held the appeal in abeyance and assigned new counsel to prosecute the appeal. The Anders brief submitted by newly assigned counsel setting forth his conclusion that there exist no nonfrivolous issues that could be raised on appeal substantially suffers from the same deficiencies as the first. Specifically, the brief does not contain an adequate statement of the factual and legal issues relevant to the conviction which would enable this court to evaluate and correctly decide the appeal (see People v Bing, 144 AD2d 249 [1988]). In spite of our explicit reference to the failure of the prior counsel to consider defendant's motion to proceed pro se, there is also no mention of this issue in newly assigned counsel's brief. Moreover, newly assigned counsel suggests that defendant faces several risks should his convictions be overturned on appeal which are not supported by either substantive principles of law or the facts of this case; namely, he contends that a harsher sentence might be imposed or additional charges brought. However, defendant has already served his sentences and no other charges were dismissed in satisfaction of his pleas.

Thus, as we find that the brief submitted by assigned counsel is deficient (see Matter of Giovanni S. [Jasmin A.], __ AD3d __, 2011 NY Slip Op 07846 [2d Dept 2011]; People v Barger, [*2]72 AD3d 696 [2010]; People v Jones, 22 Misc 3d 46 [App Term, 9th & 10th Jud Dists 2008]), we assign new counsel to prosecute the appeal. Accordingly, assigned counsel's application to be relieved of his representation is granted and new counsel assigned to prosecute the appeal.

LaCava, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 20, 2012