| People v Poznanski |
| 2012 NY Slip Op 05555 [97 AD3d 701] |
| July 11, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JanPoznanski, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Ilisa T. Fleischer and Tammy J. Smileyof counsel; Matthew C. Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Robbins, J.),rendered July 16, 2007, convicting him of burglary in the first degree (two counts), upon his pleaof guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance withAnders v California (386 US 738 [1967]), in which he moves for leave to withdraw ascounsel for the appellant.
Ordered that the motion of David A. Blythewood for leave to withdraw as counsel for theappellant is granted, and he is directed to turn over all papers in his possession to new counselassigned herein; and it is further,
Ordered that Steven Feldman, 626 RXR Plaza, West Tower, 6th Floor, Uniondale, N.Y.11556, is assigned as counsel to perfect the appeal; and it is further,
Ordered that new counsel shall serve and file a brief on behalf of the appellant within 90 daysof the date of this decision and order on motion and the respondent shall serve and file its briefwithin 30 days after the brief on behalf of the appellant is served and filed. By prior decision andorder on motion of this Court dated January 13, 2011, the appellant was granted leave toprosecute 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, who weredirected to file nine copies of their respective briefs and to serve one copy on each other.
The brief submitted by the appellant's counsel pursuant to Anders v California (386US 738 [1967]), was deficient because it failed to adequately analyze potential appellate issues orhighlight facts in the record that might arguably support the appeal (see People v Sanders, 91 AD3d798, 799 [2012]; Matter ofGiovanni S. [Jasmin A.], 89 AD3d 252, 256 [2011]; People v Barger, 72 AD3d 696, 697 [2010]). Since the brief doesnot demonstrate that assigned counsel acted "as an active advocate on behalf of his. . . client" (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256 [internalquotation marks omitted]), we must assign new counsel to represent the appellant (see Peoplev Sanders, 91 AD3d at 799; Peoplev Foster, 90 AD3d 1070, 1071 [2011]; Matter of Giovanni S. [Jasmin A.], 89AD3d at 258).[*2]
In any event, upon this Court's independent review of therecord, we conclude that potentially nonfrivolous issues exist, including, but not necessarilylimited to, whether the Supreme Court properly imposed restitution where the plea minutes donot indicate that a plea of guilty was negotiated with terms that included restitution as acomponent of the sentence (see People vGibson, 88 AD3d 1012 [2011]; People v Ortega, 61 AD3d 705, 706 [2009]; People v Kegel, 55 AD3d 625[2008]; People v Henderson, 44AD3d 873, 874 [2007]). Rivera, J.P., Hall, Lott and Cohen, JJ., concur.