People v Cabrera

People v Cabrera 2019 NY Slip Op 08856 Decided on December 11, 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 December 11, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
ROBERT J. MILLER
JOSEPH J. MALTESE
HECTOR D. LASALLE, JJ.
2018-05046 ON MOTION

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

v

Aramis Cabrera, appellant. (S.C.I. No. 16-00633)

Richard L. Herzfeld, New York, NY, for appellant.

David M. Hoovler, District Attorney, Middletown, NY (William C. Ghee of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas DeRosa, J.), rendered February 27, 2017, convicting him of criminal possession of a controlled substance in the third 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 of Richard L. Herzfeld for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to the appellant's new counsel assigned herein; and it is further,

ORDERED that Gary E. Eisenberg, 10 Esquire Road, Suite 10, New City, NY, 10956, 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 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 September 24, 2018, 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. 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 copy on each other (see 22 NYCRR 1250.9[a][4]; [c][1]).

Upon our independent review of the record, we conclude that there are nonfrivolous issues in this case, including, but not necessarily limited to, whether the purported waiver of the defendant's right to appeal was valid (see People v Bradshaw, 18 NY3d 257, 267; People v Moyett, 7 NY3d 892, 892-893; People v Johnson, 135 AD3d 960; People v Ayala, 112 AD3d 646; People v Pelaez, 100 AD3d 803) and, if such waiver is found to be invalid, whether the sentence imposed was excessive (see generally People v Suitte, 90 AD2d 80). Accordingly, assignment of new counsel [*2]is warranted (see People v Stokes, 95 NY2d 633, 638; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252).

SCHEINKMAN, P.J., MILLER, MALTESE and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court