People v Alexander (Hazel)

[*1] People v Alexander (Hazel) 2014 NY Slip Op 50386(U) Decided on March 19, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 19, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
570510/12.

The People of the State of New York, Respondent, - -

against

Hazel Alexander, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Richard M. Weinberg, J.), rendered April 5, 2012, convicting her, upon a plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposing sentence.

Per Curiam.

Appeal from judgment (Richard M. Weinberg, J.), rendered April 5, 2012, held in abeyance, motion by assigned counsel to be relieved denied without prejudice to renewal, and counsel directed to communicate with defendant forthwith concerning her willingness or unwillingness to seek vacatur of her plea and the possible consequences of pursuing an appeal, and advising her that she has 60 days from the date of this order to file a pro se supplemental brief.

Assigned counsel filed an Anders—Saunders brief (see Anders v California, 386 US 738 [1967]; People v Saunders, 52 AD2d 833 [1979]) in which she indicated that, although "a potentially viable issue exists" pertaining to the facial sufficiency of the underlying felony complaint and the validity of the plea allocution, defendant "has not authorized us to undertake the risks associated with raising these issues" by seeking to vacate her guilty plea, and that there otherwise were no meritorious points for appeal. Attached to the brief was counsel's letter to defendant informing her, contrarily, that since the "conviction ... does not present any legal issues ... there are no viable arguments we can make on appeal," and advising defendant of her right to file a pro se supplemental brief. Given the facial conflict between counsel's brief and the accompanying letter, and in the absence of any representation by counsel as to the tenor of any prior discussion(s) or communique(s) she may have had with or sent to defendant, it is far from clear whether counsel effectively communicated to defendant the substance of the brief, the nature of the "potential issue[s]" referenced therein, or the risks involved in pursuing any such issue(s) on appeal. The uncertainty thus created "raises ambiguities failing to meet the requirements" of the Anders rule (see People v Calderon, 107 AD3d 470 [2013]; People v [*2]Wright, _ Misc 3d _, 2014 NY Slip Op 24024 [App Term, 1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 19, 2014