| People v Okura (Fredrick) |
| 2009 NY Slip Op 50646(U) [23 Misc 3d 129(A)] |
| Decided on April 7, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the City Court of Peekskill, Westchester County (William L.
Maher, J.), rendered November 16, 2006. The judgment convicted defendant, upon his plea of
guilty, of assault in the third degree.
Appeal held in abeyance, application by assigned counsel for leave to withdraw as counsel granted, and new counsel assigned pursuant to article 18-b of the County Law to prosecute the appeal. New counsel is directed to file a brief within 90 days after the date of the order entered hereon and the People shall serve and file their brief within two weeks thereafter. 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 nonfrivolous issues that could be raised on appeal (Anders v California, 386 US 738 [1967]). A review of the record, however, reveals a nonfrivolous issue concerning the purported reduction of the original felony charge to a misdemeanor charge (see CPL 180.50 [3]; 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]). We therefore grant assigned counsel's application to withdraw as counsel 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. We also note that appellate counsel did not indicate that he fulfilled the "technical requirement" (People v Orve, 178 AD2d 564, 564 [1991]) that he inform defendant of the results of his analysis of the record and of defendant's right to submit a brief on his own behalf (see generally Anders v California, 386 US at 744). [*2]
Rudolph, P.J., Scheinkman and LaCava, JJ., concur.
Decision Date: April 07, 2009