Matter of Omar G., 2023 NY Slip Op 00084 [212 AD3d 614]

January 11, 2023

Appellate Division, Second Department

[*1]

In the Matter of Omar G., a Person Alleged to be a Juvenile Delinquent, Appellant.

Austin I. Idehen, Jamaica, NY, for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Rebecca L. Visgaitis and Chloe K. Moon of counsel), for respondent.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Omar G. appeals from an order of disposition of the Family Court, Queens County (Dean T. Kusakabe, J.) dated February 16, 2022. The order of disposition, upon the admission of Omar G. that he violated certain conditions of his probation previously imposed by an order of disposition of the same court, dated March 4, 2019, vacated that order of disposition and placed him in the custody of the Commissioner of Social Services for a period of 12 months. 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 Austin I. Idehen 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 Christine Theodore, 1 Hempstead Lane, Spring Valley, New York 10977, 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 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 of this Court dated March 21, 2022, 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 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]).

Upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist in this case, including, but not necessarily limited to, whether the Family Court improvidently exercised its discretion in placing the appellant in the custody of the Commissioner [*2] of Social Services for a period of 12 months and whether the court should have granted that branch of the appellant’s motion which was pursuant to CPLR 3211 (a) (4) to dismiss the petition alleging a violation of probation on the ground that another action was pending between the same parties for the same cause of action in another court. Accordingly, we must assign new counsel to represent the appellant ( see Penson v Ohio , 488 US 75, 82-84 [1988]; Anders v California , 386 US 738 [1967]; Matter of Giovanni S. [Jasmin A.] , 89 AD3d 252 , 258-260 [2011]). Connolly, J.P., Wooten, Zayas and Wan, JJ., concur..