People v. Rivera

• Decision Date: 03 August 2016
• Citation: 2016 N.Y. Slip Op. 05724,35 N.Y.S.3d 722,142 A.D.3d 512
• Parties: The PEOPLE, etc., respondent, v. Jorge RIVERA, appellant.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 512

35 N.Y.S.3d 722

2016 N.Y. Slip Op. 05724

The PEOPLE, etc., respondent,

v.Jorge RIVERA, appellant.

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

Aug. 3, 2016.

Daniel V. Remer, Ossining, NY, for appellant.

James A. McCarty, Acting District Attorney, White Plains, NY (Virginia A. Marciano and Laurie Sapakoff of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, and VALERIE BRATHWAITE NELSON, JJ.

Appeal by the defendant from a judgment of the County Court, Westchester County (Warhit, J.), rendered June 28, 2011, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, 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 Daniel V. Remer 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 Mark Diamond, Esq., Box 287356, Yorkville Station, New York, NY, 10128, 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 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 September 19, 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.

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

is deficient because it fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see

People v. Sedita, 113 A.D.3d 638, 639–640, 978 N.Y.S.2d 318 ; 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 ). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v.

California

, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we must assign new counsel to represent the appellant (see

People v. Sedita, 113 A.D.3d at 639–640, 978 N.Y.S.2d 318 ;

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 ).

Moreover, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the Supreme Court properly denied the defendant's suppression motion (see generally People v. Carlos, 126 A.D.3d 911, 2 N.Y.S.3d 910

; People v. Frazier, 124 A.D.3d 909, 998...