Appeal from a judgment of the City Court of New Rochelle, Westchester County (Gail B. Rice, J.), rendered November 17, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a forged instrument in the third degree. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which he seeks leave to withdraw as counsel.

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.

Defendant pleaded guilty to the charge of criminal possession of a forged instrument in the third degree (Penal Law § 170.20). Assigned counsel submitted an Anders brief setting forth his conclusion that there exist no nonfrivolous 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 nonfrivolous issue. During defendant's plea colloquy, he proclaimed that he had not known that the check that he had possessed had been forged. This remark clearly negated an element of the offense charged and cast significant doubt upon defendant's guilt and the voluntariness of his plea. Consequently, an issue could be raised on direct appeal that the City Court had a duty to make further inquiry so as to ensure that defendant's plea had been knowingly and voluntarily entered (see People v McNair, 13 NY3d 821 [2009] People v Lopez, 71 NY2d 662, 666 [1988] People v Ocasio, 265 AD2d 675 [1999]).

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.

Tolbert, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: February 06, 2014