SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
January 20, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the City Court of Yonkers, Westchester County (Maryanne Scattaretico-Naber, J.), entered April 16, 2009.
People v Gentle (Wade)
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 20, 2012
PRESENT: LaCAVA, J.P., NICOLAI, and IANNACCI, JJ
The judgment convicted defendant, upon his plea of guilty, of petit larceny.
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 order and 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 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 ). Because we find that the brief submitted by assigned counsel is deficient (see Matter of Giovanni S. [Jasmin A.], __ AD3d __, 2011 NY Slip Op 07846 [2d Dept 2011]; People v Burger, 72 AD3d 696 ), we assign new counsel to prosecute the appeal on this basis alone.
We further note, that pursuant to our independent review of the record, we have discovered the existence of at least one non-frivolous issue. Defendant was originally charged by felony complaint with criminal possession of stolen property in the fourth degree (Penal Law § 165.45) and grand larceny in the fourth degree (Penal Law § 155.30). The charges were subsequently purportedly reduced to criminal possession of stolen property in the fifth degree (Penal Law § 165.40) and petit larceny (Penal Law § 155.25), respectively. Subsequently, defendant pleaded guilty to the charge of petit larceny, which is the only conviction that is the subject of this appeal. 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 ; People v Espinal-Collado, 28 Misc 3d 138[A], 2010 NY Slip Op 51464[U] [App Term, 9th and 10th Jud Dists 2010]; 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]; cf. People v Hunter, 5 NY3d 750, 751-752 ; 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 People v Espinal-Collado, 28 Misc 3d 138[A], 2010 NY Slip Op 51464[U]; see also People v Nieves, 73 AD3d 1087 ; cf. People v Montes, 302 AD2d 610 ; cf. also People v Lucas, 11 NY3d 218, 220 ).
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.
LaCava, J.P., Nicolai and Iannacci, JJ., concur. Decision
Date: January 20, 2012
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