Opinion
2014-04-30
The PEOPLE, etc., respondent, v. Doreen SWENSEN, appellant.
David J. Ortiz, White Plains, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and Richard Longworth Hecht of counsel; Caitlin White on the brief), for respondent.
David J. Ortiz, White Plains, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and Richard Longworth Hecht of counsel; Caitlin White on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Molea, J.), rendered August 5, 2010, convicting her of grand larceny in the second degree and scheme to defraud in the first degree, upon her 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 David J. Ortiz for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to the appellant's new counsel assigned herein; and it is further,
ORDERED that John Paul Savoca, P.O. Box 531, Yorktown Heights, N.Y., 10598, 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, 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.
The brief submitted by the appellant's counsel pursuant to Anders v. California, 386 U.S. 378, 87 S.Ct. 1396, 18 L.Ed.2d 493 was deficient because it failed to contain an adequate statement of facts and failed to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal ( see People v. McNair, 110 A.D.3d 742, 971 N.Y.S.2d 889;People v. Singleton, 101 A.D.3d 909, 910, 954 N.Y.S.2d 910;Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676). Specifically, the statement of facts did not review, in any detail, the court's advisements to the appellant regarding the rights she was waiving, the inquiries made of the appellant to ensure that the plea was entered knowingly, voluntarily, and intelligently, or the appellant's responses to any of those advisements and inquiries ( see People v. Sedita, 113 A.D.3d 638, 978 N.Y.S.2d 318). Nor did the statement provide any detail regarding the appellant's factual admissions as to the crimes charged ( see id.). Moreover,“there is no analysis as to the validity of the waiver [of the right to appeal] with citation to legal authority” ( id. at 640, 978 N.Y.S.2d 318). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the appellant ( see People v. McNair, 110 A.D.3d 742, 971 N.Y.S.2d 889;People v. Singleton, 101 A.D.3d at 910, 954 N.Y.S.2d 910;Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676). MASTRO, J.P., HALL, AUSTIN, SGROI and DUFFY, JJ., concur.