State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 7, 2016 106865 

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

SAEED T. KAID,

Appellant.

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Calendar Date: May 23, 2016

Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

Abbie Goldbas, Utica, for appellant, and appellant pro se.

Weeden A. Wetmore, District Attorney, Elmira (John R.

Thweatt of counsel), for respondent.

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Devine, J.

Appeal from a judgment of the County Court of Chemung

County (Hayden, J.), rendered March 10, 2014, convicting

defendant upon his plea of guilty of the crime of criminal

possession of a controlled substance in the third degree.

Shortly before midnight on March 17, 2013, the State Police

stopped a vehicle for speeding in the Town of Horseheads, Chemung

County. Defendant was a passenger in the vehicle and, after

being asked to exit the vehicle due to his suspicious behavior, a

partial pat-down search disclosed a small bag of marihuana in his

pocket. He was handcuffed and placed on the bumper of the patrol

car, after which one of the troopers who made the stop observed

"a baseball to softball size plastic" bag on the ground beneath a

fidgeting defendant. Inside the bag were smaller baggies
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containing what was later identified to be heroin and cocaine. 

Defendant was thereafter charged in a four-count indictment

with various drug offenses, and County Court (Keene, J.) denied

his motion to suppress the evidence recovered in the wake of the

traffic stop. He then elected to plead guilty to one count of

criminal possession of a controlled substance in the third degree

stemming from his possession of cocaine. Defendant did so upon

the understanding that he would be sentenced, as a second felony

offender, to six years in prison and three years of postrelease

supervision. County Court (Hayden, J.) imposed the agreed-upon

sentence, and defendant now appeals. 

Defense counsel bases the arguments in her brief upon the

premise that defendant was asked to waive his right to appeal as

a component of the plea agreement but did not validly do so. The

assumption is a faulty one inasmuch as defendant was never asked,

and did not attempt, to waive his right to appeal. Defendant

thereafter submitted a pro se supplemental brief advancing issues

pertinent to this appeal, but "neither a review of the record by

[this Court] nor a pro se brief can substitute for the

single-minded advocacy of appellate counsel" (People v Casiano,

67 NY2d 906, 907 [1986]; see People v Stokes, 95 NY2d 633, 636-

637 [2001]; People v Gonzalez, 47 NY2d 606, 610-611 [1979]). In

order to ensure that defendant receives due process of law under

these peculiar circumstances, his "appeal must be held in

abeyance, his assigned counsel relieved, and new appellate

counsel assigned to serve and file a brief on behalf of the

defendant" (People v Chrzanowski, 139 AD2d 755, 756 [1988]; see

Smith v Robbins, 528 US 259, 277 [2000]; Evitts v Lucey, 469 US

387, 396-397 [1985]; People v Casiano, 67 NY2d at 907).

Garry, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.
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ORDERED that the decision is withheld, counsel is relieved

of assignment and new counsel to be assigned.

ENTER:

Robert D. Mayberger

Clerk of the Court