| People v Sedita |
| 2014 NY Slip Op 00129 [113 AD3d 638] |
| January 8, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Sedita, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Condon, J.), rendered January 19, 2011, convicting him of attempted assault in the firstdegree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted abrief in accordance with Anders v California (386 US 738 [1967]), in which hemoves for leave to withdraw as counsel for the appellant.
Ordered that the motion of Robert C. Mitchell for leave to withdraw as counsel forthe appellant is granted, and he is directed to turn over all papers in his possession to newcounsel assigned herein; and it is further,
Ordered that Carol E. Castillo, Esq., P.O. Box 146, East Setauket, N.Y., 11733, isassigned as counsel to prosecute the appeal; and it is further,
Ordered that the respondent is directed to furnish a copy of the certified transcript ofthe proceedings to the appellant's new assigned counsel; and it is further,
Ordered that new counsel shall serve and file a brief on behalf of the appellant within90 days of the date of this decision and order on motion, and the respondent shall serveand file its brief within 30 days after the brief on behalf of the appellant is served andfiled. By prior decision and order on motion of this Court dated July 30, 2012, theappellant was granted leave to prosecute the appeal as a poor person, with the appeal tobe heard on the original papers, including a certified transcript of the proceedings, and onthe briefs of the parties, who were directed to file nine copies of their respective briefsand to serve one copy on each other.
In reviewing an attorney's motion to be relieved pursuant to Anders vCalifornia (386 US 738 [1967]), this Court must first " 'satisfy itself that the attorneyhas provided the client with a diligent and thorough search of the record for any arguableclaim that might support the client's appeal' " (Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 255[2011], quoting Penson v Ohio, 488 US 75, 83 [1988]). As this Court explainedin Matter of Giovanni S., "counsel must, at a minimum, draw the Court'sattention to the relevant evidence, with specific references to the record; identify andassess the efficacy of any significant objections, applications, or motions; and identifypossible issues for appeal, with reference to the facts of the case and relevant legalauthority" (Matter of Giovanni S.[*2][JasminA.], 89 AD3d at 258).
Here, the Anders brief filed by defense counsel, on the defendant's appealfrom a judgment of conviction rendered upon a plea of guilty, is deficient. First, thestatement of facts, which is one and one-half pages long, does not sufficiently describethe plea allocution. In particular, it does not review, in any detail, the court's advisementsto the defendant regarding the rights he was waiving, the inquiries made of the defendantto ensure that his plea was knowing and voluntary, or the defendant's responses to any ofthose advisements and inquiries. Nor does the brief provide any detail regarding thedefendant's factual admissions as to the crime charged.
In addition, the brief fails to "identify possible issues for appeal, with reference to thefacts of the case and relevant legal authority" (Matter of Giovanni S. [Jasmin A.],89 AD3d at 258). In this respect, the brief merely states, in conclusory fashion, that thedefendant entered a voluntary plea of guilty and quotes the colloquy regarding thedefendant's waiver of his right to appeal. The brief does not discuss the basis, withreference to the facts of the case and legal authority, of defense counsel's conclusion thatthe plea was entered knowingly and voluntarily, an issue that survives a valid appealwaiver (see People v Seaberg, 74 NY2d 1, 10 [1989]). Further, to the extent thatthe quoting of the colloquy regarding the appeal waiver is meant as an assertion that thedefendant validly waived his right to appeal, there is no analysis as to the validity of thewaiver with citation to legal authority.
Inasmuch as the brief does not demonstrate that assigned counsel has acted "as anactive advocate on behalf of his . . . client" (Matter of Giovanni S.[Jasmin A.], 89 AD3d at 256 [internal quotation marks omitted]) or that he hasdiligently examined the record, we must assign new counsel to represent the appellant(see People v Singleton,101 AD3d 909, 910 [2012]; People v Ovalle, 99 AD3d 1023, 1024 [2012]; Matterof Giovanni S. [Jasmin A.], 89 AD3d at 258). Skelos, J.P., Dickerson, Lottand Austin, JJ., concur.