New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
May 21, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
JAMES A. TOMASSI, APPELLANT.
People v Tomassi (James)
Decided on May 21, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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: IANNACCI, J.P., NICOLAI and MOLIA, JJ
Appeal from judgments of the District Court of Nassau County, First District (Christopher G. Quinn, J.), rendered December 21, 2007.
The judgments convicted defendant, upon his guilty plea, of attempted criminal possession of a weapon in the fourth degree, two charges of aggravated unlicensed operation of a motor vehicle in the third degree, operation of a motor vehicle while registration or privilege is suspended or revoked, four charges of following too closely, two charges of aggravated unlicensed operation of a motor vehicle in the second degree, failing to drive within a single lane or moving from a lane without first ascertaining that movement can be safely made, three charges of operating a vehicle without a seatbelt, unlicensed operation of a motor vehicle, operating a motor vehicle without registration, criminal possession of a controlled substance in the seventh degree, two charges of improperly turning a vehicle, leaving the scene of an incident with personal injury, and facilitating aggravated unlicensed operation of a motor vehicle in the third degree.
ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw 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 ). A review of the record reveals at least two non-frivolous issues. The felony complaint, which was purportedly converted to a misdemeanor complaint pursuant to CPL 180.50 by means of a notation, may not have adequately pleaded the charge of criminal possession of a weapon in the fourth degree (see generally People v Dreyden, 15 NY3d 100 ). We note that a claim that an accusatory instrument is jurisdictionally invalid is not precluded by a lack of preservation (see People v Alejandro, 70 NY2d 133, 135 ), by a defendant's entry of a valid guilty plea (see People v Dreyden, 15 NY3d at 102-103; People v Delvecchio, 34 Misc 3d 142[A], 2012 NY Slip Op 50091[U] [App Term, 9th & 10th Jud Dists 2012]), or by a defendant's waiver of his right to appeal (see People v Nieves, 73 AD3d 1087, 1088 ; People v Delvecchio, 34 Misc 3d 142[A], 2012 NY Slip Op 50091[U]).
The District Court initially allocuted defendant to the charge of leaving the scene of an accident causing property damage (Vehicle and Traffic Law § 600 ) rather than to the charge of leaving the scene of a personal injury accident (Vehicle and Traffic Law § 600 ). Upon realizing its error, the District Court attempted to re-allocute defendant to the proper charge. However, there exists a second non-frivolous issue as to whether the court failed in its duty to ensure that defendant understood the nature of this charge, and that his plea thereto was knowing, intelligent and voluntary (see People v Ford, 14 AD3d 347 ; People v Green, 242 AD2d 541 ; see generally People v Rivera, 71 AD3d 701 ; People v Rodriguez, 14 AD3d 719 ).
We, therefore, hold the appeal in abeyance, grant assigned counsel's application to withdraw and assign new counsel to ascertain whether defendant desires to raise any issue that may subject him to risk, and to prosecute the appeal on defendant's behalf accordingly.
Iannacci, J.P., Nicolai and Molia, JJ., concur. Decision Date: May 21, 2012
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