People v Velez

People v Velez 2019 NY Slip Op 07800 Decided on October 30, 2019 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 October 30, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.
2017-11146 ON MOTION

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

v

Raymond Velez, appellant. (S.C.I. No. 16-00812)

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 (Larry J. Schwartz, J.), rendered August 22, 2017, convicting him of burglary in the second 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 is granted, Brendan O'Meara is relieved as counsel for the defendant, and he is directed to turn over all papers in his possession to the defendant's new counsel assigned herein; and it is further,

ORDERED that Jennifer Spencer, 399 Knollwood Rd., 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 defendant's newly assigned counsel; and it is further,

ORDERED that new counsel shall serve and file a brief on behalf of the defendant 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 defendant is served and filed. By prior decision and order on motion of this Court dated January 12, 2018, the defendant 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. The parties are directed to file one original and five duplicate hard copies, and one digital copy, of their respective briefs, and to serve one hard copy on each other (see 22 NYCRR 1250.9[a][4]; [c][1]).

The brief submitted by the defendant'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 potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v Ellis, 156 AD3d 718, 720; People v McNair, 110 AD3d 742; People v Singleton, 101 AD3d 909, 910; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256). The statement of facts does not review, in any detail, the County Court's advisements to the defendant regarding the rights he was [*2]waiving, the inquiries made of the defendant to ensure that the plea was knowingly and voluntarily entered, or the defendant's responses to any of those advisements and inquiries (see People v Ellis, 156 AD3d at 719; People v Deprosperis, 126 AD3d 997, 998; People v Donovan, 124 AD3d 793, 794; People v Sedita, 113 AD3d 638, 639-640). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v California, we must assign new counsel to represent the defendant (see People v Rivera, 142 AD3d 512, 513; People v Parker, 135 AD3d 966, 968; People v Sedita, 113 AD3d at 639-640; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).

CHAMBERS, J.P., ROMAN, HINDS-RADIX and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court