People v. Dudley , 18 N.Y.S.3d 874 ( 2015 )

People v Rohs (2015 NY Slip Op 08200)

People v Rohs

2015 NY Slip Op 08200

Decided on November 12, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 12, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
L. PRISCILLA HALL
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.

2014-10300 ON MOTION

[*1]The People of the State of New York, respondent,

v

Robert Rohs, appellant. (S.C.I. No. 14-00437)

Judith E. Permutt, Eastchester, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer and Laurie Sapakoff of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Everett, J.), rendered September 23, 2014, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (368 US 738), in which she moves for leave to withdraw as counsel for the appellant.

ORDERED that the motion of Judith E. Permutt for leave to withdraw as counsel for the appellant is granted, and she is directed to turn over all papers in her possession to the new counsel assigned herein; and it is further,

ORDERED that Mark Diamond, Esq., Box 287356, Yorkville Station, N.Y., 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 March 2, 2015, 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 assigned counsel pursuant to Anders v California (386 US 738) is deficient because it does not contain an adequate statement of facts and fails to adequately analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v Swenson, 130 AD3d 848, 849; People v McNair, 110 AD3d 742, 743; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256). Since the brief does not demonstrate that assigned counsel acted as an active advocate on behalf of her client (see Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256), or that she diligently examined the record, we must [*2]assign new counsel to represent the appellant (see People v Swenson, 130 AD3d at 849; People v McNair, 110 AD3d at 743; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256).

MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court