| People v Ovalle |
| 2012 NY Slip Op 07132 [99 AD3d 1023] |
| October 24, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Warren A. Ovalle, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.),rendered January 7, 2010, convicting him of assault in the second degree, upon his plea of guilty,and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders vCalifornia (386 US 738 [1967]), in which he moves for leave to withdraw as counsel for theappellant.
Ordered that the motion of Robert C. Mitchell 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 Arza R. 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 the People are directed to furnish a copy of the certified transcript of theproceedings to the new assigned counsel; 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 People shall serve and file their 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 December 2, 2010, 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 assigned counsel pursuant to Anders vCalifornia (386 US 738 [1967]), was deficient because it failed to adequately analyzepotential appellate issues or highlight facts in the record that might arguably support the appeal(see People v Poznanski, 97 AD3d701 [2012]; People v Sanders,91 AD3d 798, 799 [2012]; Matterof Giovanni S. [Jasmin A.], 89 AD3d 252, 256 [2011]). Since the brief does notdemonstrate that assigned counsel diligently examined the record, we must assign new counsel torepresent the appellant (see People vPoznanski, 97 AD3d 701 [2012]; People v Sanders, 91 AD3d at 799; Matterof Giovanni S. [Jasmin A.], 89 AD3d at 258). Dillon, J.P., Balkin, Leventhal and Hall, JJ.,concur.