People v Osorio-Rivera

People v Rivera 2017 NY Slip Op 08696 Decided on December 13, 2017 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 13, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SANDRA L. SGROI
JOSEPH J. MALTESE
BETSY BARROS
LINDA CHRISTOPHER, JJ.
2015-08172 ON MOTION

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

v

Edgardo Osorio- Rivera, appellant. (S.C.I. No. 15-00216)

Brendan O'Meara, White Plains, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent (no brief filed).

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Capeci, J.), rendered July 13, 2015, convicting him of assault 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 defendant.

ORDERED that the motion of Brendan O'Meara 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 Marshall Goldstein, Esq., 399 Knollwood Road, Suite 211, White Plains, NY, 10603, 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 the date 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 April 20, 2016, 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.

The brief submitted by the appellant's counsel pursuant to Anders v California (386 US 738) is deficient because it fails to contain an adequate statement of facts and fails to analyze any potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v McNair, 110 AD3d 742; People v Singleton, 101 AD3d 909, 910; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v California, we must assign new counsel to represent the appellant (see People v Rivera, 142 AD3d 512, 513; People v Parker, 135 AD3d 966, 968; People [*2]v Sedita, 113 AD3d 638, 639-640; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).

DILLON, J.P., SGROI, MALTESE, BARROS and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court