People v. Martinez, 2013-06419

• Decision Date: 04 March 2015
• Docket Number: 2013-06419
• Parties: The PEOPLE, etc., respondent, v. Oscar MARTINEZ, appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 725

2 N.Y.S.3d 377 (Mem)

2015 N.Y. Slip Op. 01819

The PEOPLE, etc., respondent

v.Oscar MARTINEZ, appellant.

2013-06419

Supreme Court, Appellate Division, Second Department, New York.

March 4, 2015.

Barry Jay Skwiersky, Mount Vernon, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Steven A. Bender of counsel), for respondent.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered May 14, 2013, convicting him of attempted criminal possession of a weapon in the second 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 Barry Jay Skwiersky 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 Richard L. Herzfeld, Esq., 140 W. 40th Street, 20th Floor, New York, N.Y., 10018, 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 October 10, 2013, 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.

Upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, the voluntariness of the defendant's plea (see People v. Barrett, 98 A.D.3d 628, 629, 949 N.Y.S.2d 752 ; People v. Batista, 89 A.D.3d 1099, 1100, 933 N.Y.S.2d 585 ). Accordingly, assignment of new counsel is warranted (see Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 931 N.Y.S.2d 676 ).

SKELOS, J.P., LEV...