| People v Smith |
| 2021 NY Slip Op 00194 |
| Decided on January 13, 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 January 13, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI, JJ.
2017-10104 ON MOTION
2017-10105
v
Tymel A. Smith, appellant. (Ind. Nos. 106/16, 1606/16)
Jan Murphy, Huntington, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley of counsel; Matthew C. Frankel on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from two judgments of the Supreme Court, Nassau County (Angelo A. Delligatti, J.), both rendered January 23, 2017, convicting him of attempted robbery in the first degree under Indictment No. 106/16, and attempted promoting prison contraband in the first degree under Superior Court Information 1606/16, upon his pleas of guilty, and imposing sentences. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which she moves for leave to withdraw as counsel for the appellant.
ORDERED that the motion of Jan Murphy for leave to withdraw as counsel is granted, and she is directed to turn over all papers in her possession to the appellant's new counsel assigned herein; and it is further,
ORDERED that Steven A. Feldman, 1129 Northern Blvd., Suite 404, Manhasset, New York, 11030, 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 defendant's assigned counsel pursuant to Anders v California (386 US 738) is deficient in that it fails to adequately analyze potential legal issues, including whether a nonfrivolous claim exists as to the excessiveness of the consecutive sentences imposed (see People v Lorenzo-Perez, 181 AD3d 823, 824). With no citations to relevant legal [*2]authority, the brief inaccurately states that the Supreme Court was mandated to sentence the defendant to the maximum terms of imprisonment (see People v Stokes, 95 NY2d 633, 639). Since the brief does not demonstrate that assigned counsel fulfilled her obligations under Anders v California, we must assign new counsel to represent the defendant (see Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 258).
RIVERA, J.P., HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court