People v. Zimba

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Warhit, J.), rendered February 26, 2013, convicting her of burglary in the first degree, upon her 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 Scott M. Bishop for leave to withdraw as counsel is granted, and he is directed to turn over all papers in his possession to the new counsel assigned herein; and it is further, *802 Ordered that Gary Eisenberg, Esq., 10 Esquire Road, Suite 10, New City, N.Y., 10956, is assigned as new 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 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 February 10, 2015, 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, who were directed to file nine copies of their respective briefs and to serve one copy on each other. The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738 [1967]) is deficient because it fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v Emrich, 114 AD3d 872, 873 [2014]; People v McNair, 110 AD3d 742, 743 [2013]; People v Singleton, 101 AD3d 909, 910 [2012]; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256 [2011]). Since the brief did not demonstrate that assigned counsel fulfilled his obligations under Anders v California, we must assign new counsel to represent the appellant (see People v Emrich, 114 AD3d at 873; People v McNair, 110 AD3d at 743; People v Singleton, 101 AD3d at 910; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256). Moreover, upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the purported waiver of the appellant’s right to appeal was valid (see generally People v Brown, 122 AD3d 133, 141 [2014]; People v Nugent, 109 AD3d 625 [2013]; People v Gheradi, 68 AD3d 892, 893 [2009]) and, if such waiver is found to be invalid, whether the sentence imposed was excessive (see generally People v Suitte, 90 AD2d 80 [1982]). Leventhal, J.R, Austin, Roman, Miller and Barros, JJ., concur.