People v Hernandez

People v Hernandez 2013 NY Slip Op 00355 Decided on January 23, 2013 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 January 23, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
RUTH C. BALKIN
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2010-06686 ON MOTION
(Ind. No. 09-00906)

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

v

William Hernandez, appellant.




Charles O. Lederman, White Plains, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Steven
A. Bender and Richard Longworth
Hecht of counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Holdman, J.), rendered May 21, 2010, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence. Assigned counsel has adopted the brief submitted by the defendant's previous assigned counsel 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 Charles O. Lederman for leave to withdraw as counsel 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 Evelyn K. Isaac, Esq., P.O. Box 176, Hastings-on-Hudson, N.Y., 10706, is assigned as counsel to perfect 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 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 August 27, 2010, 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.

Upon this Court's independent review of the record, we conclude that there are nonfrivolous issues in this case, including, but not necessarily limited to, whether the County Court's failure to pronounce sentence in the defendant's presence at the sentencing hearing rendered the sentence illegal (cf. People v Guerrero, 12 NY3d 45, 47; see CPL 380.20, 380.40; People v McGhee, 96 AD3d 786; see also People v Campbell, 97 NY2d 532, 535). Accordingly, assignment of new counsel is warranted (see generally Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 254-261).
ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court