People v. Morales ( 2020 )

People v Morales (2020 NY Slip Op 01188)

People v Morales

2020 NY Slip Op 01188

Decided on February 19, 2020

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 February 19, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
JOSEPH J. MALTESE
BETSY BARROS
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI, JJ.

2018-06944 ON MOTION
(Ind. No. 339/16)

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

v

Oscar Morales, appellant.

Thomas J. Butler, New York, NY, for appellant.

Madeline Singas, District Attorney, Mineola, NY (Jared Chester of counsel; Matthew C. Frankel on the brief), 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 operating a motor vehicle under the influence of alcohol as a felony, 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 J. Butler for leave to withdraw as counsel for the appellant 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 Thomas A. Kenniff, 87 Walker Street, 2nd Floor, New York, NY, 10013, 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 the date 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, 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 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]).

The brief submitted by the appellant's counsel pursuant to Anders v California (386 US 738) is deficient because it fails to contain an adequate statement of facts and fails to analyze [*2]potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v Ellis, 156 AD3d 718, 720; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256). The statement of facts does not review, in any detail, the Supreme Court's advisements to the appellant regarding the rights he was waiving, the inquiries made of the appellant to ensure that the admission was knowingly and voluntarily entered, or the appellant's responses to any of those advisements and inquiries (see People v Velez, 176 AD3d 1239, 1240; People v Ellis, 156 AD3d at 719; People v Deprosperis, 126 AD3d 997, 998). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v California, we must assign new counsel to represent the appellant (see People v Velez, 176 AD3d at 1240; People v Ellis, 156 AD3d at 720; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).

RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court