People v. Wolfe

198 A.D.3d 822

152 N.Y.S.3d 621 (Mem)

The PEOPLE, etc., respondent,

v.Brian WOLFE, appellant.

2017-12245

Ind. No. 69/17

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

Submitted—September 9, 2021

October 13, 2021

Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant, and appellant pro se.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller and Kirsten A. Rappleyea of counsel), for respondent.

HECTOR D. LASALLE, P.J., REINALDO E. RIVERA, COLLEEN D. DUFFY, WILLIAM G. FORD, JJ.

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the County Court, Dutchess County ( Edward T. McLoughlin, J.), rendered October 2, 2017, convicting him of course of sexual conduct against a child in the first 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 Thomas N.N. Angell for leave to withdraw as counsel 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 Salvatore C. Adamo, 1345 Avenue of the Americas, 2nd Floor, New York, N.Y. 10105, 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 February 8, 2018, 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]).

In reviewing an attorney's motion to be relieved pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, this Court must initially determine whether " ‘the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal’ " ( Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 255, 931 N.Y.S.2d 676, quoting Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 ). Counsel is therefore required "in his or her brief, among other things, to ‘identify possible issues for appeal, with reference to any facts of the case and relevant legal authority’ " ( People v. Whitted, 184 A.D.3d 771, 772, 124 N.Y.S.3d 198, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ). " ‘[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal’ " ( People v. Bowen, 192 A.D.3d 905, 906, 140 N.Y.S.3d 746, quoting Matter of Giovanni S. [Jasmin A.], 89 A.D.3d at 258, 931 N.Y.S.2d 676 ).

Here, the brief submitted by the appellant's assigned counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 is deficient. The brief asserts that the sentence imposed was a legal sentence and that none of the issues which generally survive an appeal waiver exist...