People v. Picard

2025 NY Slip Op 00116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 2025
• Docket: 2023-03372
• Status: Published

Opinion

People v Picard (2025 NY Slip Op 00116)

People v Picard

2025 NY Slip Op 00116

Decided on January 8, 2025

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 8, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
LARA J. GENOVESI
HELEN VOUTSINAS
DONNA-MARIE E. GOLIA, JJ.

2023-03372
2023-03375
(Ind. No. 243/18, S.C.I. No. 336/19)

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

v

Steve Picard, appellant. (Action No. 1)

The People, etc., respondent,

v

Steven Picard, appellant. (Action No. 2)

Leon H. Tracy, Garden City, NY, for appellant.

Anne T. Donnelly, District Attorney, Mineola, NY (Hilda Mortensen of counsel; Matthew C. Frankel on the brief), for respondent.

DECISION & ORDER

Appeals by the defendant from two judgments of the Supreme Court, Nassau County (Teresa K. Corrigan, J.), both rendered March 8, 2022, convicting him of criminal possession of a controlled substance in the second degree under Indictment No. 243/18, and criminal possession of a forged instrument in the second degree under Superior Court Information No. 336/19, 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 he moves for leave to withdraw as counsel for the appellant.

ORDERED that the motion of Leon H. Tracy for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,

ORDERED that Jillian S. Harrington, P.O. Box 131621, Staten Island, NY 10313, is assigned as counsel to prosecute the appeals; 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 of the appellant is served and filed. By prior decision and order on motion of this Court dated August 21, 2023, the appellant was granted leave to prosecute the appeal as a poor person, with the appeals 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]).

"An appellate court's role in reviewing an attorney's motion to be relieved pursuant to Anders v California (386 US 738) consists of two separate and distinct steps" (People v Bolton, 216 AD3d 812, 813). First, the court evaluates assigned counsel's brief, "which must, to be adequate, discuss 'relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority'" (People v Murray, 169 AD3d 227, 232, quoting Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 258). "The second step is to determine whether counsel's assessment that there are no nonfrivolous issues for appeal is correct" (People v Bolton, 216 AD3d at 813; see Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258). "In analyzing whether nonfrivolous appellate issues exist, it is essential to appreciate the distinction between a potential appellate argument that is merely meritless or unlikely to prevail and one that is frivolous" (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258). "Appeals that present issues that may be arguable on their merits—even if weakly or marginally so—must be perfected to fulfill the defendant's right to receive, and the attorney's obligation to provide, zealous representation" (People v Murray, 169 AD3d at 231). If the court finds nonfrivolous issues that could be raised on appeal, the court must assign new counsel to pursue the appeal on the defendant's behalf (see Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).

Here, while we are satisfied with the sufficiency of the brief filed by assigned counsel, upon this Court's independent review of the record, and consistent with the argument advanced by the People, we conclude that at least one nonfrivolous issue exists in regard to whether the Supreme Court should have ordered an updated presentence investigation report before sentencing the defendant (see CPL 390.20[1]; People v Goolsby, 153 AD2d 759, 759; see generally People v Garcia, 196 AD3d 700; People v Pelige, 172 AD3d 1407).

BRATHWAITE NELSON, J.P., GENOVESI, VOUTSINAS and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court