People v. Kaid , 34 N.Y.S.3d 909 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 7, 2016 106865
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
SAEED T. KAID,
Appellant.
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Calendar Date: May 23, 2016
Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.
__________
Abbie Goldbas, Utica, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (John R.
Thweatt of counsel), for respondent.
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Devine, J.
Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered March 10, 2014, convicting
defendant upon his plea of guilty of the crime of criminal
possession of a controlled substance in the third degree.
Shortly before midnight on March 17, 2013, the State Police
stopped a vehicle for speeding in the Town of Horseheads, Chemung
County. Defendant was a passenger in the vehicle and, after
being asked to exit the vehicle due to his suspicious behavior, a
partial pat-down search disclosed a small bag of marihuana in his
pocket. He was handcuffed and placed on the bumper of the patrol
car, after which one of the troopers who made the stop observed
"a baseball to softball size plastic" bag on the ground beneath a
fidgeting defendant. Inside the bag were smaller baggies
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containing what was later identified to be heroin and cocaine.
Defendant was thereafter charged in a four-count indictment
with various drug offenses, and County Court (Keene, J.) denied
his motion to suppress the evidence recovered in the wake of the
traffic stop. He then elected to plead guilty to one count of
criminal possession of a controlled substance in the third degree
stemming from his possession of cocaine. Defendant did so upon
the understanding that he would be sentenced, as a second felony
offender, to six years in prison and three years of postrelease
supervision. County Court (Hayden, J.) imposed the agreed-upon
sentence, and defendant now appeals.
Defense counsel bases the arguments in her brief upon the
premise that defendant was asked to waive his right to appeal as
a component of the plea agreement but did not validly do so. The
assumption is a faulty one inasmuch as defendant was never asked,
and did not attempt, to waive his right to appeal. Defendant
thereafter submitted a pro se supplemental brief advancing issues
pertinent to this appeal, but "neither a review of the record by
[this Court] nor a pro se brief can substitute for the
single-minded advocacy of appellate counsel" (People v Casiano,
67 NY2d 906, 907 [1986]; see People v Stokes, 95 NY2d 633, 636-
637 [2001]; People v Gonzalez, 47 NY2d 606, 610-611 [1979]). In
order to ensure that defendant receives due process of law under
these peculiar circumstances, his "appeal must be held in
abeyance, his assigned counsel relieved, and new appellate
counsel assigned to serve and file a brief on behalf of the
defendant" (People v Chrzanowski, 139 AD2d 755, 756 [1988]; see
Smith v Robbins, 528 U.S. 259, 277 [2000]; Evitts v Lucey, 469 U.S.
387, 396-397 [1985]; People v Casiano, 67 NY2d at 907).
Garry, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.
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ORDERED that the decision is withheld, counsel is relieved
of assignment and new counsel to be assigned.
ENTER:
Robert D. Mayberger
Clerk of the Court