People v. McCalla

People v McCalla (2018 NY Slip Op 02343) People v McCalla 2018 NY Slip Op 02343 Decided on April 4, 2018 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 April 4, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ. 2016-01239 (Ind. No. 1212/14) [*1]The People of the State of New York, respondent, v Tyrone McCalla, appellant. Bruce R. Bekritsky, Mineola, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Sarah S. Rabinowitz of counsel; Matthew C. Frankel on the brief), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Christopher Quinn, J.), rendered January 5, 2016, convicting him of burglary in the second degree (three counts), grand larceny in the third degree, criminal mischief in the second degree, and criminal mischief in the fourth degree (two counts), upon his plea of guilty, and imposing sentence. 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 Bruce R. Bekritsky for leave to withdraw as counsel 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 R. Villecco, 366 North Broadway, Suite 410, Jericho, NY, 11753, 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 March 21, 2016, 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) 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 Rivera, 142 AD3d 512; People v Parker, 135 AD3d 966, 968; People v McNair, 110 AD3d 742, 743; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256). Assigned counsel failed to draw the Court's attention to any "significant objections, applications, or motions" regarding the hearing on the defendant's pretrial suppression [*2]motion (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258; see People v Carlos, 126 AD3d 911, 912). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v California (386 US 738), we must assign new counsel to represent the appellant (see People v Sedita, 113 AD3d 638, 639-640; People v McNair, 110 AD3d 742; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258). Moreover, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the Supreme Court properly denied the defendant's pretrial suppression motion (see People v Carlos, 126 AD3d at 913; People v Frazier, 124 AD3d 909, 910; People v Hardman, 110 AD3d 917, 918), and whether the sentence imposed was excessive (see generally People v Suitte, 90 AD2d 80). DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court