People v. Martinez

126 A.D.3d 725, 2 N.Y.S.3d 377, 2015 NY Slip Op 01819, 2015 N.Y. App. Div. LEXIS 1807

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered May 14, 2013, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which he moves for leave to withdraw as counsel for the appellant.

Ordered that the motion of Barry Jay Skwiersky 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 Richard L. Herzfeld, Esq., 140 W. 40th Street, 20th Floor, New York, N.Y., 10018, 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 October 10, 2013, 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 par ties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.

Upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, the voluntariness of the defendant’s plea (see People v Barrett, 98 AD3d 628, 629 [2012]; People v Batista, 89 AD3d 1099, 1100 [2011]). Accordingly, assignment of new counsel is warranted (see Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]).

Skelos, J.P., Leventhal, Hinds-Radix, Duffy and LaSalle, JJ., concur.