People v Smith

People v Smith 2020 NY Slip Op 03404 Decided on June 17, 2020 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 June 17, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
JOHN M. LEVENTHAL
COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON, JJ.
2018-12096
(Ind. No. 17-00783)

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

v

Christopher Smith, appellant.

Thomas R. Villecco, Jericho, NY, for appellant.

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

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (William L. DeProspo, J.), rendered September 7, 2018, convicting him of manslaughter 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 appellant.

ORDERED that the motion of Thomas R. Villecco for leave 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 Warren S. Hecht, 118-21 Queens Blvd., Suite 518, Forest Hills, NY, 11375, 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 March 8, 2019, 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 hard copy on each other (see 22 NYCRR 1250.9[a][4]; [c][1]).

The brief submitted by the defendant's assigned counsel pursuant to Anders v California (386 US 738) is deficient in that it fails to evaluate whether the plea was advantageous to the defendant in light of the potential availability of a justification defense, and whether the defendant may have a nonfrivolous claim of ineffective assistance of counsel. Morever, the brief does not evaluate the written waiver of the right to appeal. Since the brief does not demonstrate that [*2]assigned counsel fulfilled his obligations under Anders v California, we must assign new counsel to represent the defendant (see Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 258).

Moreover, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the defendant was deprived of the effective assistance of trial counsel, whether the purported waiver of the defendant's right to appeal is valid (see People v Pelaez, 100 AD3d 803), and whether the sentence imposed was excessive (see People v Suitte, 90 AD2d 80).

CHAMBERS, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court