People v. Poznanski

• Decision Date: 11 July 2012
• Citation: 948 N.Y.S.2d 359,2012 N.Y. Slip Op. 05555,97 A.D.3d 701
• Parties: The PEOPLE, etc., respondent, v. Jan POZNANSKI, appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 701

948 N.Y.S.2d 359

2012 N.Y. Slip Op. 05555

The PEOPLE, etc., respondent,

v.Jan POZNANSKI, appellant.

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

July 11, 2012.

David A. Blythewood, Mineola, N.Y., for appellant, and appellant pro se.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Ilisa T. Fleischer and Tammy J. Smiley of counsel; Matthew C. Frankel on the brief), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the County Court, Nassau County (Robbins, J.), rendered July 16, 2007, convicting him of burglary in the first degree (two counts), 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 David A. Blythewood 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 Steven 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 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 January 13, 2011, 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. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, was deficient because it failed to adequately analyze potential appellate issues or highlight facts in the record that might arguably support the appeal ( see People v. Sanders, 91 A.D.3d 798, 799, 936 N.Y.S.2d 568;Matter of Giovanni S. [ Jasmin A.], 89 A.D.3d 252, 256, 931 N.Y.S.2d 676;People v. Barger, 72 A.D.3d 696, 697, 897 N.Y.S.2d 521). Since the brief does not demonstrate that assigned counsel 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] ), we must assign new counsel to represent the appellant ( see People v. Sanders, 91 A.D.3d at 799, 936 N.Y.S.2d 568;People v. Foster, 90 A.D.3d 1070, 1071, 934...