People v. Morales ( 2021 )

People v Morales (2021 NY Slip Op 05986)

People v Morales

2021 NY Slip Op 05986

Decided on November 3, 2021

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 3, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI
WILLIAM G. FORD, JJ.

2018-06944 ON MOTION

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

v

Oscar Morales, appellant. (S.C.I. No. 339/16)

Thomas A. Kenniff, Mineola, NY, for appellant.

Joyce A. Smith, Acting District Attorney, Mineola, NY (Jared A. Chester and Matthew C. Frankel of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an amended judgment of the Supreme Court, Nassau County (Terence P. Murphy, J.), rendered November 8, 2017, revoking a sentence of probation previously imposed by the same court, upon a finding that he violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous convictions of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), aggravated unlicensed operation of a motor vehicle in the first degree, and operating a motor vehicle without an ignition interlock device. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.

ORDERED that the motion of Thomas A. Kenniff 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 Stephen Mahler, 125-10 Queens Blvd., Suite 311, Kew Gardens, NY, 11415, is assigned as counsel to perfect 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 August 9, 2018, as amended April 15, 2019, 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]).

While we are satisfied with the sufficiency of the brief filed by assigned counsel, upon [*2]this Court's independent review of the record, we conclude that there are nonfrivolous issues in this case, including, but not necessarily limited to, whether the defendant's admission to violations of conditions of probation was involuntary because the Supreme Court was required, but failed, to advise him of the immigration consequences, if any, of his admission (see People v Peque, 22 NY3d 168).

Accordingly, we must assign new counsel to represent the appellant (see People v Stokes, 95 NY2d 633, 636; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252).

RIVERA, J.P., BRATHWAITE NELSON, IANNACCI and FORD, JJ., concur.

ENTER:

Maria T. Fasulo

Acting Clerk of the Court