People v. Smith
| Decision Date | 13 April 2022 |
| Docket Number | 2019–13193,Ind. No. 952/18 |
| Parties | The PEOPLE, etc., respondent, v. Noel SMITH, appellant. |
| Court | New York Supreme Court — Appellate Division |
204 A.D.3d 838
166 N.Y.S.3d 268
The PEOPLE, etc., respondent,
v.
Noel SMITH, appellant.
2019–13193
Ind. No. 952/18
Supreme Court, Appellate Division, Second Department, New York.
Submitted—March 10, 2022
April 13, 2022
Pat Bonanno, White Plains, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, PAUL WOOTEN, JJ.
DECISION & ORDER ON MOTION
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered September 12, 2019, convicting him of driving while intoxicated and aggravated unlicensed operation of a motor vehicle, 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 assigned counsel moves for leave to withdraw as counsel for the appellant.
ORDERED that the motion of Pat Bonanno for leave to withdraw as counsel for the appellant is granted, and former counsel is directed to turn over all papers in former counsel's possession to new counsel assigned herein; and it is further,
ORDERED that Steven A. Feldman, 1129 Northern Boulevard, Suite 404, Manhasset, N.Y. 11030, is assigned as new 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 February 4, 2020, 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. The parties are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other (see 22 NYCRR 670.9 [a]).
An appellate court's role in reviewing an attorney's motion to be relieved pursuant to ( Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 ) consists of two separate and distinct steps (see People v. Murray, 169 A.D.3d 227, 231–232, 93 N.Y.S.3d 694 ). "Step one is the court's evaluation of assigned counsel's brief, which must, to be adequate, discuss ‘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’ " ( id. at 231–232, 93 N.Y.S.3d 694, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 258, 931 N.Y.S.2d 676 ).
"If the Anders brief is deficient and fails to withstand step one review, new counsel must be assigned to perform a new appellate review" ( People v. Murray , 169 A.D.3d at 232, 93 N.Y.S.3d 694 ; see e.g. People v. McNair , 110 A.D.3d 742, 971 N.Y.S.2d 889 ; People v. Singleton , 101 A.D.3d 909, 954 N.Y.S.2d 910 ). As the Court of Appeals has repeatedly cautioned, "neither a review of the record by the Appellate Division nor a pro...
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