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The People of the State of New York, Respondent v. Adrian Rose

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


November 1, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ADRIAN ROSE, APPELLANT.

Appeal from a judgment of the City Court of New Rochelle, Westchester County (Preston S. Scher, J., at plea; John P. Colangelo, J., at sentencing), rendered October 20, 2009.

People v Rose (Adrian)

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 1, 2011

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second 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 and order. 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 [1967]). A review of the record, however, reveals the existence of at least one non-frivolous issue. Defendant was originally charged by felony complaint with criminal contempt in the first degree (Penal Law § 215.51 [b] [ii]). Thereafter, the City Court purportedly reduced the charge to criminal contempt in the second degree, a misdemeanor (Penal Law § 215.50 [3]). Defendant pleaded guilty to the misdemeanor charge. A non-frivolous issue exists as to whether the felony complaint was properly converted to a misdemeanor complaint so as to effectuate the reduction of the felony charge (see CPL 180.50 [3] [a] [iii]; [3] [b]; People v Okura, 23 Misc 3d 129[A], 2009 NY Slip Op 50646[U] [App Term, 9th & 10th Jud Dists 2009]; People v Dyson, 19 Misc 3d 139[A], 2008 NY Slip Op 50900[U] [App Term, 9th & 10th Jud Dists 2008]; People v Reesa W., 18 Misc 3d 128[A], 2007 NY Slip Op 52436[U] [App Term, 9th & 10th Jud Dists 2007]; cf. People v Hunter, 5 NY3d 750, 751-752 [2005]; People v Ackridge, 16 Misc 3d 127[A], 2006 NY Slip Op 52596[U] [App Term, 9th & 10th Jud Dists 2006]), and, if defendant's waiver of his right to appeal was valid (see People v Cuthbertson, 27 Misc 3d 138[A], 2010 NY Slip Op 50892[U] [ App Term, 9th & 10th Jud Dists 2010]), as to whether the waiver could preclude a claim that the felony complaint was not properly converted (see generally People v Nieves, 73 AD3d 1087, 1088 [2010]; cf. People v Montes, 302 AD2d 610 [2003]; cf. also People v Lucas, 11 NY3d 218, 220 [2008]).

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., LaCava and Iannacci, JJ., concur.

Decision Date: November 01, 2011

20111101

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