Appeal from a judgment of the of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J.), rendered May 7, 2009.
Decided on January 20, 2011
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
The judgment convicted defendant, upon her plea of guilty, of assault in the third degree.
ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted, and new counsel is assigned pursuant to article 18-B of the County Law to prosecute the appeal. New counsel is directed to serve and file a brief within 90 days after the date of this decision. The People may serve and file a respondent's brief within 21 days after the service upon them of the appellant's brief. Appellant's new counsel, if so advised, may serve and file a reply brief within seven days after service of the respondent's brief. Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel.
Assigned counsel has submitted an Anders brief setting forth his conclusion that there exist no non-frivolous issues that could be raised on appeal (see Anders v California, 386 US 738 ). A review of the record, however, reveals the existence of at least one non-frivolous issue. Defendant was originally charged by felony complaint with assault in the second degree (Penal Law § 120.05 ). The People subsequently filed a purported "superseding misdemeanor information" reducing the charge to the misdemeanor of assault in the third degree (Penal Law § 120.00 ) and charging additional non-felony offenses. Defendant pleaded guilty to the charge of misdemeanor-level assault in satisfaction of the information. A non-frivolous issue exists as to whether the felony complaint was properly replaced by the information so as to effectuate the reduction of the felony charge despite the fact that the complainant of the information was not the complainant of the felony complaint, and, if defendant's waiver of her right to appeal was valid, would a claim that the felony charge was not properly reduced to a misdemeanor charge survive the waiver.
We therefore grant assigned counsel's motion to withdraw as counsel, and, in light of the risk inherent in this issue (see People v Spooner, 22 Misc 3d 136[A], 2008 NY Slip Op 52664[U] [App Term, 9th & 10th Jud Dists 2008]), assign new counsel to ascertain whether defendant desires to raise the issue and to prosecute the appeal on defendant's behalf, with respect to this issue or any other issue that can be identified.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: January 20, 2011
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