People v Kahng (Young)

[*1] People v Kahng (Young) 2015 NY Slip Op 50755(U) Decided on May 6, 2015 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., GARGUILO and CONNOLLY, JJ.
2013-301 W CR

The People of the State of New York, Respondent,

against

Young Kahng, Appellant.

Appeal from judgments of the Justice Court of the Town of Greenburgh, Westchester County (Delores Scott Brathwaite, J.), rendered January 17, 2013. The judgments convicted defendant, after a nonjury trial, of trespass and harassment in the second degree, respectively. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which he seeks leave to withdraw as counsel.

ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted, and new counsel is assigned pursuant to article 18-B of the County Law to prosecute the appeal. New counsel is directed to serve and file a brief within 90 days after the date of this decision and order. The People may serve and file a respondent's brief within 21 days after the service upon them of the appellant's brief. Appellant's new counsel, if so advised, may serve and file a reply brief within seven days after service of the respondent's brief. Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel.

Defendant was charged in separate accusatory instruments with harassment in the second degree (Penal Law § 240.26 [3]) and trespass (Penal Law § 140.05), respectively. Following a nonjury trial, at which defendant was not represented by counsel, he was convicted of both charges. Assigned appellate counsel has submitted a brief setting forth his conclusion that there exist no nonfrivolous issues that could be raised on appeal. However, the brief reveals neither that assigned counsel "has diligently investigated the possible grounds of appeal" (Anders v California, 386 US 738, 741 [1967]), nor that, acting as an "active advocate," rather than as a mere "adviser to the court on the merits of the appeal," he has "resolve[d] all doubts and ambiguous legal questions in favor of his or her client" (Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256 [2011] [internal quotation marks omitted]; see also People v Stokes, 95 NY2d 633, 636 [2001]) sufficiently to assist this court to perform its own, independent review of the record to determine if Anders treatment is appropriate (see People v Casiano, 67 NY2d 906, 907 [1986]). "It can hardly be gainsaid that . . . appellate counsel intent upon protecting the rights of his (or her) . . . client will obtain and thoroughly study the trial transcript and consult with the defendant . . ." (People v Gonzalez, 47 NY2d 606, 610-611 [1979] [emphasis added]), which, it appears, counsel may not have done here.

We note that at least one nonfrivolous issue may exist, to wit, whether defendant's decision to forgo the assistance of trial counsel represented a knowing, intelligent and voluntary waiver of the right thereto (see People v Qureshi, 45 Misc 3d 57, 60 [App Term, 9th & 10th Jud Dists 2014]).

Accordingly, assigned counsel's application to withdraw as counsel is granted and new counsel is assigned.

Tolbert, J.P., Garguilo and Connolly, JJ., concur.

Decision Date: May 06, 2015