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People v. Calderon

Supreme Court of New York, First Department

June 11, 2013

The People of the State of New York, Respondent,
v.
Damien Calderon, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant.

Mazzarelli, J.P., Sweeny, Moskowitz, Manzanet-Daniels, Gische, JJ.

Appeal from judgment, Supreme Court, New York County (Renee A. White, J.), rendered December 21, 2010, convicting defendant, upon his plea of guilty, of robbery in the third degree and sentencing him, as a second felony offender, to a term of two to four years, held in abeyance, motion by assigned counsel to be relieved denied without prejudice to renewal, and counsel directed to communicate with defendant forthwith concerning his willingness or unwillingness to seek vacatur of his plea and the possible consequences of pursuing an appeal, and advising him that he has 60 days from the date of this order to file a pro se supplemental brief.

Counsel's letter to defendant, along with a copy of the brief filed with this Court, raises ambiguities failing to meet the requirements of People v Saunders (52 A.D.2d 833 [1976]). Counsel wrote to defendant that "(s)ince you have, in response to my letters, informed this office that you are willing to assume the risk of seeking to vacate your plea, there are no issues that can be raised on your appeal." The letter also conflicted with the brief, in which counsel stated that defendant has not responded to her letter advising him about the risks involved in seeking to vacate his plea.


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