People v. Broadnax

175 A.D.3d 1549

106 N.Y.S.3d 892 (Mem)

The PEOPLE, etc., Respondent,

v.Simone BROADNAX, Appellant.

(S.C.I. No. 10056/16)

2017–00486

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

Submitted—April 24, 2019

September 25, 2019

Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER ON MOTION

ORDERED that assigned counsel's motion for leave to withdraw as counsel for the appellant is denied; and it is further,

ORDERED that the brief filed on behalf of the appellant is stricken, and assigned counsel shall serve and file a replacement brief in accordance herewith 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 replacement brief on behalf of the appellant is served and filed. The parties are directed to file one original and five duplicate hard copies, and one digital copy, of their respective briefs, and to serve one hard copy on each other (see 22 NYCRR 1250.9 [a][4]; [c][1] ).

Upon our independent review of the record, we conclude that at least one nonfrivolous issue exists for appeal, i.e., whether Penal Law § 265.01(1), the statute to which the defendant pleaded guilty, as applied to electronic stun guns, is unconstitutional (see People v. Tannenbaum , 23 N.Y.2d 753, 296 N.Y.S.2d 798, 244 N.E.2d 269 ; People v. Edrees , 123 A.D.3d 842, 999 N.Y.S.2d 86 ; Avitabile v. Beach , 368 F. Supp. 3d 404 [N.D. N.Y.] ). Inasmuch as Penal Law § 265.01 was found to be unconstitutional by the United States District Court for the Northern District of New York subsequent to assigned counsel submitting his brief (see Avitabile v. Beach , 368 F Supp 3d 404 ), we refer the matter back to assigned counsel to prosecute the appeal (see Matter of Giovanni S. [Jasmin A.] , 89 A.D.3d 252, 931 N.Y.S.2d 676 ).

DILLON,...