Opinion
2014-01-8
The PEOPLE, etc., respondent, v. Anthony SEDITA, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.
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 first degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, in which he moves for leave to withdraw as counsel for the appellant.
ORDERED that the motion of Robert C. Mitchell for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,
ORDERED that Carol E. Castillo, Esq., P.O. Box 146, East Setauket, N.Y., 11733, is assigned as counsel to prosecute the appeal; and it is further,
ORDERED that the respondent is directed to furnish a copy of the certified transcript of the 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 within 90 days of the date of this decision and order on motion, and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated July 30, 2012, the appellant was granted leave to prosecute 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 were directed to file nine copies of their respective briefs and to serve one copy on each other.
In reviewing an attorney's motion to be relieved pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, this Court must first “ ‘satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal’ ” (Matter of Giovanni S. [ Jasmin A.], 89 A.D.3d 252, 255, 931 N.Y.S.2d 676, quoting Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300). As this Court explained in Matter of Giovanni S., “counsel must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority” (Matter of Giovanni S. [ Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676).
Here, the Anders brief filed by defense counsel, on the defendant's appeal from a judgment of conviction rendered upon a plea of guilty, is deficient. First, the statement of facts, which is one and one-half pages long, does not sufficiently describe the plea allocution. In particular, it does not 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. Nor does the brief provide any detail regarding the defendant's factual admissions as to the crime charged.
In addition, the brief fails to “identify possible issues for appeal, with reference to the facts of the case and relevant legal authority” ( Matter of Giovanni S. [ Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676). In this respect, the brief merely states, in conclusory fashion, that the defendant entered a voluntary plea of guilty and quotes the colloquy regarding the defendant's waiver of his right to appeal. 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 ( see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022). Further, to the extent that the quoting of the colloquy regarding the appeal waiver is meant as an assertion that the defendant validly waived his right to appeal, there is no analysis as to the validity of the waiver with citation to legal authority.
Inasmuch as the brief does not demonstrate that assigned counsel has acted “as an active advocate on behalf of his ... client” (Matter of Giovanni S. [ Jasmin A.], 89 A.D.3d at 256, 931 N.Y.S.2d 676 [internal quotation marks omitted] ) or that he has diligently examined the record, we must assign new counsel to represent the appellant ( see People v. Singleton, 101 A.D.3d 909, 910, 954 N.Y.S.2d 910; People v. Ovalle, 99 A.D.3d 1023, 1024, 952 N.Y.S.2d 466; Matter of Giovanni S. [ Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676).