People v Bravo (Arek)

[*1] People v Bravo (Arek) 2015 NY Slip Op 51943(U) Decided on December 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and CONNOLLY, JJ.
2013-1924 S CR

The People of the State of New York, Respondent,

against

Arek Bravo, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (Richard T. Dunne, J.), rendered August 6, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). 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.

Assigned counsel submitted a brief in accordance with Anders v California (386 US 738 [1967]), setting forth his conclusion that there exist no nonfrivolous issues that could be raised on appeal. However, the brief submitted by assigned counsel contains a statement of facts that fails to "sufficiently describe the plea allocution," fails to review, "in any detail, the court's advisements to the defendant regarding the rights he was waiving, the inquiries made of the defendant to ensure that his plea was knowing and voluntary, or the defendant's responses to any of those advisements and inquiries," and does not "provide any detail regarding the defendant's factual admissions as to the crime charged" (People v Sedita, 113 AD3d 638, 639 [2014]). In addition, the brief does not "discuss the basis, with reference to the facts of the case and legal authority, of defense counsel's conclusion that the plea was entered knowingly and voluntarily, an issue that survives a valid appeal waiver" (id. at 640). Thus, the brief does not demonstrate that assigned counsel acted as an active advocate for his client, or that he "diligently examined the record" (id.; see Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 255-256 [2011]; see also People v Deprosperis, 126 AD3d 997, 998 [2015]; People v Johnson, 126 AD3d 916, 917 [2015]; People v Donovan, 124 AD3d 793, 794-795 [2015]; People v Pendelton, 122 AD3d 774, 774-775 [2014]; People v Rosado, 117 AD3d 882, 883-884 [2014]; People v Swensen, 116 AD3d 1073, 1073-1074 [2014]; People v Pannettiere, 114 AD3d 882, 882-883 [2014]). Moreover, the brief is deficient as it contains "no legal analysis whatsoever" (People v Palmer, 34 [*2]Misc 3d 151[A], 2012 NY Slip Op 50296[U], *1 [App Term, 9th & 10th Jud Dists 2012]).

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

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

Decision Date: December 31, 2015