People v Devouil (Jumar)

[*1] People v Devouil (Jumar) 2014 NY Slip Op 51200(U) Decided on August 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 8, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570929/12

The People of the State of New York, Respondent,

against

Jumar Devouil, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Erika M. Edwards, J. at plea; Robert M. Mandelbaum, J. at sentencing), rendered August 24, 2012, convicting him, upon a plea of guilty, of criminal possession of a weapon in the fourth degree, and imposing sentence.

Per Curiam.

Appeal from judgment (Erika M. Edwards, J. at plea; Robert M. Mandelbaum, J. at sentencing), rendered August 24, 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 the nature of the potentially "viable issue" referenced in counsel's Saunders brief, defendant's willingness or unwillingness to seek vacatur of his plea and the possible consequences of pursuing an appeal, and advising defendant that he 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 viable issue" exists pertaining to the facial sufficiency of the underlying accusatory instrument, defendant "has not authorized us to undertake the risks associated with raising this issue," and that there otherwise were no meritorious points for appeal. Attached to the brief was counsel's January 13, 2014 letter to defendant informing him, 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 his right to file a pro se supplemental brief. While counsel's subsequent (April 9, 2014) letter to defendant suggested the existence of "legal issues" which, if successfully pursued, would create the risk of a "higher sentence," it failed to identify the nature of the issues referenced therein or inform defendant of the legal options available to him vis-a-vis his guilty plea. The deficiencies in counsel's follow-up letter to defendant, as well as the facial conflict between counsel's brief and her initial letter to defendant, thus "raise[] ambiguities failing to meet the requirements" of the Anders rule (see People v Calderon, 107 AD3d 470 [2013]; People v Wright, 43 Misc 3d 17 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur
Decision Date: August 08, 2014